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Miscarriage as a disability – physical or mental?

Physical and mental injuries may require a different approach to accommodation so is miscarriage a disability – or the associated depression?

By Jeffrey R. Smith

Employees get sick. That’s a fact of life. And whether they like it or not, employers have to deal with it. Obviously, if employees miss a lot of time from illness, it can affect productivity and the business. And it can be tricky if an employee uses several sick days but isn’t really sick enough to go on disability benefits, leaving the employer trying to manage absences and ensure not too many sick days are being taken for dubious reasons.

It also may seem to employers that the obligation to accommodate medical conditions is increasing, as the bar for determining a disability seems to be lowering. A recent decision by the Ontario Human Rights Tribunal has further pumped up that obligation, meaning employers can probably add miscarriage to the list of disabilities they must accommodate without discrimination.

The case came about after an Ottawa woman was fired by her employer for missing performance targets in 2013. However, a large part of why she missed the targets was because of two significant absences — one in January 2013 because of an injury from a fall and another in June 2013 when she had to take time off while she dealt with depression stemming from a miscarriage and the death of her mother-in-law. The woman had to use vacation days for the latter absence because she had used up her sick days in January as she wasn’t given short-term disability benefits.

The woman filed a human rights complaint, arguing both her January injury and miscarriage were disabilities that should have been accommodated. The employer argued both conditions were temporary and for a relatively short period, so they shouldn’t be considered disabilities — much like colds and flu have been dismissed as not disabilities in earlier decisions.

The tribunal agreed with the woman in an interim decision, finding that neither the injury nor the miscarriage was common or transitory and their effects were serious enough to warrant consideration as disabilities. After all, the woman was unable to work because of them — particularly the lingering emotional effects of the miscarriage.

The decision is interesting because it seems the tribunal found the miscarriage was a disability not so much for the physical effects it had — which can be disabling in themselves — but more for the lingering emotional effects. The tribunal made a point of mentioning the “significant emotional distress” that continued after she recovered physically. This is a significant element as it makes sense the emotional effects of miscarriages last longer than the physical ones.

However, it also raises the question of what the actual disability was here. While miscarriages take their toll physically for a short period of time, it seems like more often than not it is the mental toll that makes someone unable to work for a while. In the above case, it’s the woman’s depression that was more the disability that needed accommodation — depression that was not just caused by the miscarriage but also a death in the family.

With mental health awareness at the forefront these days, efforts to treat mental illness as a disability are paying off as employers are being required — and often taking the initiative — to accommodate it as a recognized disability. So it’s important to recognize when depression and mental illness is disabling.

Was the employee in the above case unable to work because of what she went through physically in June 2013, as was the case in January? Based on the circumstances and what the tribunal said, probably not. While many who suffer from miscarriages may require a little time for physical recovery, some may not and still be able to work. Is it that different than what’s needed for the flu?

It’s likely any accommodation for such an unfortunate incident will be more necessary for the emotional consequences. It may be semantics, but it is also important to differentiate between a physical and a mental disability as they may require different approaches to accommodation. It makes sense that the effects of a miscarriage should be considered a disability — but if it does require accommodation, it makes more sense to protect the mental issues that may result as a disability instead of the physical event.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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