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CANADIAN HR LAW
Aug 13, 2014

Robin Williams: Depression knows no boundaries

Employees may be suffering from hidden disabilities that affect performance, require accommodation
    

By Stuart Rudner

The recent death of Robin Williams shocked and saddened people across the world. In addition to the tremendous loss the public has suffered, and the sadness at such an untimely death, many people have been left wondering how someone that brought joy to so many people apparently suffered from depression so great that he could take his own life.

For many of us, Robin Williams was as far from the stereotypical case of depression as they could possibly imagine.

How does this relate to employment law? For employers, the situation is a reminder that your employees may be suffering from hidden disabilities that you are not aware of but that may be affecting their performance and might require accommodation. For employees, this may serve as a reminder that if you suffer from such a hidden disability, others, including your employer, are likely unaware of it and you should ask for help before the situation gets worse.

By now, we are all aware of the fact disability is a ground protected by human rights legislation and employers have a duty to accommodate employees with a disability to the point of undue hardship. If, for example, an employee suffers from a psychological condition such as addiction, his employer may be required to accommodate him by providing a leave of absence in order to seek treatment. However, a question that often arises is when the duty to accommodate is triggered.

Generally speaking, the process begins with a clear request for accommodation from the employee. When such a request is made, the employer is entitled to request sufficient medical documentation in order to allow them to understand the specific limitations upon the employee's ability to carry out their duties that require accommodation. While the employer is not entitled to other medical information, such as the diagnosis, in order to accommodate the employee, it has to know what must be accommodated. At that point, the onus will fall on the employer to assess whether accommodation is viable and, if so, in what form. In recent years, judicial decisions have been clear in their requirement that an employee seeking accommodation take part in the process, and that failure to provide appropriate information will, in most cases, relieve the employer of any obligation to accommodate.

So what happens when an employee has a need for accommodation but does not request it? Like many areas of law, the issue will come down to a question of reasonableness. If there was no way for the employer to be aware of the condition that requires accommodation, then it will not be expected to make any effort to accommodate. However, employers cannot simply bury their head in the sand and turn a blind eye to what is patently obvious; if the employer ought to have known, then most courts and tribunals will find that, at the very least, they have a duty to inquire.

Sometimes, employers will make efforts to determine whether there is a need for accommodation by asking an employee whether there are circumstances impacting their performance, or whether there are external factors that need to be addressed. Unfortunately, in many cases the employee will refuse to acknowledge any need for accommodation, perhaps due to embarrassment or fear. In that case, does the employer have to do more? As the old saying goes, "You can lead a horse to water, but you cannot make him drink."

Likewise, you can attempt to guide an employee toward accommodation, but you cannot force them to accept it. While every case is fact specific, employers are not expected to be mind readers. Where there are obvious signs of a disability or need for accommodation, employers should make appropriate inquiries. However, at a certain point, an employee's refusal to request accommodation or provide sufficient information to allow the employer to assess the viability of accommodation will disentitle them to any relief.

Apparently, Robin Williams had recently sought treatment in order to address his lifelong addiction issues. It does not appear, however, that he sought help for the depression that he apparently suffered from. Putting aside legal obligations, any individual that feels as though they cannot cope with their life and are in danger of harming themselves or others should seek help.

Similarly, anyone that is aware of someone else in such a condition should, morally, attempt to intervene. Legally, many employers adopt an attitude of preferring "not to know", as knowing will trigger an obligation to accommodate. However, as mentioned above, if the employer ought to know, then the obligation may be triggered anyway. That being said, employees should not assume they are entitled to accommodation unless they make a clear request for it.


Credit: Mario Anzuoni (Reuters)
Robin Williams, an Oscar-winning actor and groundbreaking comedian,
hung himself with a belt in his northern California, a coroner said
on Tuesday, based on preliminary findings.


    
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COMMENTS
Jumping the gun on medical information
Wednesday, August 20, 2014 11:41:00 AM by Stuart Rudner
Thanks for the comment; you make an important point. Accommodation can be a difficult process and it is often challenging to determine how much information an employer can request. Employees seeking accommodation need to understand that employers are entitled to sufficient information to allow them to understand the need underlying the request. As the Policy states:
The person with a disability is required to:

make accommodation needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation[195]
answer questions or provide information about relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed[196]
take part in discussions about possible accommodation solutions
co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed that is unavailable to the person with a disability
meet agreed-upon performance standards and requirements, such as job standards, once accommodation is provided
work with the accommodation provider on an ongoing basis to manage the accommodation process
discuss his or her disability only with persons who need to know.[197]

And also:
An accommodation provider should be able to explain why it is requesting particular information about a person’s disability and how this relates to accommodating the person.

Employers must use discretion with respect to the information they request.
Jumping the gun on medical information
Wednesday, August 20, 2014 11:13:00 AM
This article implies that when an employee approaches an employer with a request for accommodation on the basis of mental disability the employer should automatically seek medical information. Section 13.7 of the Ontario Human Rights Commissions' Policy on Preventing Discrimination based on Mental Health Disabilities gives good examples of a preferable approach: focus on the person’s own assessment of their needs and strengths. Only if the person’s needs are complex, or the person is not taking part in the process, should additional information from a doctor be sought. Otherwise employees with mental health issues are stigmatized as liars seeking unnecessary special privileges.