Human rights policy clarifies mental health, addiction

Ontario policy designed to educate employers about responsibilities
By Liz Bernier
|Canadian HR Reporter|Last Updated: 07/14/2014

Mental health and addictions disabilities will affect almost one in five Canadian adults over their lifetimes — yet these disabilities often remain misunderstood.

Those who struggle with mental illness have also suffered from historical disadvantage, negative stereotypes and social prejudice, according to the landmark 1991 Supreme Court of Canada decision R. v. Swain. Owen Swain was charged with assault after attacking his wife and children in a bizarre manner. His court case spurred Parliament to pass new laws around individuals who are found not criminally responsible by reason of a mental disorder.

Prejudice has made many people with mental illness afraid to disclose their condition to their employer, said Barbara Hall, chief commissioner of the Ontario Human Rights Commission (OHRC) in Toronto.

“Because of the stigma associated with mental health issues, people have not been open about what they’re experiencing, what their needs are,” she said.

“They’ve hidden away and, as a result, in many places, the stereotypes, the stigma remain unchallenged and people aren’t sure how to respond if the issue comes out in the open where they work, where they live, where they give or get services.”

That’s why the OHRC released a new policy on mental health and addictions disabilities, to help educate employers, service providers and others with the realities of these disabilities — and their own responsibilities, said Hall.

“It makes clear what the responsibility is, that meeting the needs of people with mental health and addiction issues isn’t just a nice thing to do — it’s the law. And it provides some best practices, some discussion of ways of meeting people’s needs,” she said.

“My sense from talking with employers is that there’s a real desire to deal directly with these issues. People just need the tools.”

The policy doesn’t introduce any substantive changes, it just creates a resource for employers to better understand the human rights issues around mental health, said Aaron Rousseau, an employment lawyer at Whitten & Lublin in Toronto.

“For the most part, the policy is mainly gathering together pre-existing decisions and explaining the application of general principles in the mental health disability context,” he said.

“If you were complying before, you’re complying now, is one way of looking at it… That said, I think the impact it has is partly to bring greater attention to the issues.”

It’s important to note that intent is not a factor in discrimination claims, so employers with policies that are inadvertently discriminatory can still face a human rights claim.

“It is not uncommon for there to be a neutral standard which has an adverse impact on somebody with a mental health disability or any other type of disability — so even though it wasn’t designed that way, it has that effect,” said Rousseau.

That’s why being proactive in learning about accommodation responsibilities can be very
useful, he said.

“You can prevent a lot of problems before they start in that way.”

There are two major pitfalls to avoid — one-size-fits-all policies or arbitrary standards, and stereotyping and profiling.

“One of the problems is that not all employees in an organization are going to take mental health disabilities among some of their co-workers in stride, and as no more than what they are. There can be perceptions that people are crazy or they’re unreliable, and even if the actual disability was something which is mild and reasonably under control, and not something that has a major or long-term impact on the employee’s performance or reliability,” he said.

Discrimination and negative stereotypes are still fairly prevalent in the workplace, as are misconceptions about the abilities of employees with mental illnesses, said Sarika Gundu, national director of the workplace mental health program at the Canadian Mental Health Association (CMHA) in Toronto.

“Many people hold false beliefs and fears about others who have mental illnesses. They assume that they’re unproductive or unreliable, violent or unable to handle workplace pressure,” she said.

“I find people that with mental illness are treated very differently than people who have a physical illness. They need to be treated the same. Their needs need to be heard, they need to be understood, they need to be accommodated as much as necessary and they need to be treated with respect.”

That’s why education is such a critical piece of the puzzle, said Gundu.

“Not only will it combat discrimination but many managers feel paralyzed with fear of saying the wrong thing,” she said, adding that tools like the new OHRC policy — which CMHA participated in developing — and the National Standard for Psychological Health and Safety can help managers learn how to communicate effectively and create an emotionally safe environment.

The focus on mental health should come from the top down — and it’s important for senior leadership to buy in, said Gundu. But accomplishing that buy-in isn’t about inundating them with national statistics.

“It’s really important for them to understand what’s happening in their own backyard,” she said.

Look at your data around employee assistance program usage, disability management, drug utilization, absenteeism, turnover and short-term disability, and pull together a picture of mental health within your own organization, said Gundu.

Education around mental health and addictions — and human rights in general — is most effective when accompanied by a strong, proactive strategy to prevent and remove barriers to equal participation, states the policy.

And removing those barriers requires an open mind and flexibility, said Hall.

“It involves a lot of listening, sitting down for respectful conversation and exploring solutions that may not mean much more than adding some flexibility to what’s currently done — and sometimes thinking outside the box. And that can have an enormous impact.”

Chances are, someone in your family or your workplace is affected by mental illness, said Hall, “so there are a lot of people currently in workplaces who are fearful of being found out.

“Nobody wants to face a human rights complaint and nobody wants to know that they’ve contributed to the marginalization or suffering that people experience when their rights are ignored.”

Employers may also need to reevaluate the way they define mental illness because it’s not a static definition, said Rousseau.

“The definitions of mental health disability are being stretched and expanded and tested all the time, and that’s an ongoing challenge. There isn’t an easy way for employers to deal with it — it’s an evolving area, looking at what the Human Rights Tribunal, and society generally, considers to be a mental health disability,” he said.

Add Comment

  • *
  • *
  • *
  • *