Employers can have a duty to accommodate mental disabilities, even if employees don’t formally request it
Oct 13, 2015
By Jeffrey R. Smith
Do you know how sad your employees are?
Of course, employees are always going to go through various moods on any given day. Sometimes it can be chalked up to the Monday blues, workload or an issue happening in an employee’s personal life. That’s part of life, and sometimes productivity might be affected but there’s not much an employer can do about it.
But what if the employee is more than just sad and is actually suffering from clinical depression?
Depression is a disability that legally employers are required to accommodate to the point of undue hardship. However, accommodation normally involves an employee to formally request accommodation. When it comes to depression, that’s not so easy, as people suffering from the condition aren’t always willing or able to come forward about it.
There are awareness campaigns everywhere these days trying to raise awareness of depression, but for some there’s still a social stigma associated with depression and some people still feel ashamed about it.
Almost 40 per cent of workers are experiencing significant symptoms of depression, according to a survey of working-age adults in Ontario conducted by Carolyn Dewa of the Centre of Addiction and Mental Health and published in the Journal of Occupational and Environmental Medicine. This is something employers should certainly be aware of as that makes a large potential pool of workers who might need some sort of accommodation at some point.
However, what may be more concerning is more than one-half of those surveyed who were experiencing depression symptoms — 52.8 per cent — didn’t see a need to seek help. This could be a problem for employers, as these workers could be affected by their depression but aren’t getting help or requesting accommodation. This could be causing productivity issues as well as impact the work environment.
Some employers might feel that if workers don’t come to them, then they don’t have to worry about it. But sometimes that’s simply not the case. Courts have found that employers can have a duty to accommodate even if an employee hasn’t formally requested accommodation, if there are clues as to the employee’s condition that contributes to a situation where an employer “ought to know or have known” that the employee suffers from a disabling condition such as depression.
This means it would behoove employers to be vigilant and not ignore indications that an employee might be having psychological issues. It doesn’t mean they have to jump the gun when suspicions arise — such as increased sick days, decreased productivity or managerial observations in the workplace — but it wouldn’t hurt to inquire when there are signs. Checking in with the employee, ensuring awareness of employee assistance plans or other efforts are good ways to help employees feel looked-after and protect employers from future claims they ignored warning signs.
Obviously, employers can’t be expected to know everything and shouldn’t be delving into employees’ personal lives. But if there are clues an employee has a problem, playing dumb won’t help the employee or the employer. The duty to accommodate can start earlier than you think.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.