An employer's duty to inquire with mental illness

Not all employees will feel comfortable telling their employer that they are dealing with a mental illness, but this doesn’t necessarily absolve an employer from taking no action to address the situation. In cases where an employer suspects that an employee suffers from a mental illness that may be affecting their performance at work, the employer has a duty to inquire.

The duty to inquire exists only when you know or perceive — or the facts are such that you ought to have known or perceived — that an employee has a mental health disability that is the cause of a workplace issue.

Indicators of mental illness

These are common traits that may be indicative of an employee having a mental disability, such as: a significant departure from previous consistent behaviour; increased absences or tardiness; increased poor work performance; lower levels of co-operation and productivity; complaints of confusion; and expressions of grandiose ideas.

Essentially, it’s about looking for an alteration in an employee’s past mood or behaviour that is material enough or has continued for long enough for you to conclude that they aren’t just having a bad day or two.

Many experienced HR professionals will have a good sense of knowing when to suspect an employee suffers from a mental illness — particularly when they are engaged with the employee’s front-line manager or supervisor.

Raising the issue

If you conclude that an employee may have a mental illness, an employer’s obligation is to provide the employee with a meaningful opportunity to identify what they are dealing with and request assistance or accommodation.

There are a number of practical suggestions to follow in the process. For one, it’s important to raise the issue in the context of the employee’s work performance. Be prepared to identify where an employee’s performance is falling short, and be able to pinpoint specific behaviour that has resulted in the request for more information.

When applicable, mention that the employee’s recent conduct is a departure from their usual good performance — this will send a supportive message to the employee.

It’s also advisable to re-familiarize yourself with the organization’s accommodation policies and processes to ensure compliance and to present the policy to the employee. You’ll also want to mention the company's EAP, sick benefits or counselling.

Confidentiality is also essential, and the employee should be advised that information will be requested on a need-to-know basis.

For the meeting itself, two employer representatives should be present — one to do the talking and the other to serve as a witness and take notes. If it’s a unionized environment, there should be a union representative present.

The Canadian Human Rights Commission advises against suggesting you can relate to an employee’s struggles unless you’ve had a similar personal experience. Similarly, avoid delivering a “pep talk” that suggests that the employee can work their way through a disability. You should also avoid offering or asking for a diagnosis of the condition or cause of the illness.

Refusals and denials

It’s possible the employee may not co-operate. They may refuse to answer questions, say the matter is private or deny that anything is bothering them.

However, the employee does not dictate the next steps. An employee is within their rights to keep their personal health information to themselves if the employer’s concerns are based entirely on off-duty conduct or rumours. But if the concerns are connected to behaviour occurring in the workplace, you may have some difficult decisions to make.

For one, how do you address the misconduct? If it’s about an employee’s poor performance and they have provided no information, you are free to administer discipline, since the employee has done nothing to suggest that their behaviour is non-culpable. In such cases, receiving disciplinary corrective action may open an employee’s eyes and result in them disclosing an illness.

A more drastic response to a refusal to co-operate may be appropriate when the employee is in a safety-sensitive position and poses a reasonable safety risk. The removal of the employee on non-disciplinary grounds may be required for the employer to meet its obligations under safety legislation.

When a problem is disclosed

If an employee discloses that she is experiencing a problem, it’s unlikely she’ll be disciplined at this stage because that would be discrimination if the misconduct in question results from a disability.

However, the presence of a disability does not automatically exclude the use of discipline. A non-disciplinary approach is required only when a causal connection between the condition and the misconduct is established. When there is no connection, the employee cannot rely on the disability to escape punishment.

For example, there are a number of cases where employees have stolen items from the workplace and blamed their misconduct on an addiction. If they’re unable to prove that the addiction caused the misconduct, discipline is an appropriate response. If medical evidence reveals that addiction was a contributing factor in the misconduct — but not the sole cause — a hybrid approach of both disciplinary and accommodation efforts may be appropriate. If the addiction alone compelled the misconduct, a purely accommodationbased approach is required.

Requesting medical information

The first step after an employee discloses a need for help is usually to request supporting medical documentation, unless the employer and employee can reach an accommodation agreement that satisfies both parties.

The employer is entitled to ask for certain medical information, and if the request is reasonable, the employee has an obligation to provide it. But there are limitations — an employer is entitled to medical information needed to: 

• confirm the existence of a condition and the need to provide accommodation
• understand the employee’s condition and its restrictions on them
• understand what will and will not work for a workplace accommodation

Requests for a diagnosis, test results, details of prescriptions or medical history should be avoided because they are not necessary to implement a workplace accommodation. In many cases, the employer does not need to know what a condition is called in order to accommodate, especially at the outset. But if an accommodation is lengthy and complex, employers will have more leeway in requesting information.

An employee does have an absolute right to keep their confidential medical information private. However, if this thwarts an employer’s obligations or makes it impossible for an employer to provide appropriate accommodation, the employer is entitled to hold the employee out of the workplace. An employee has no right to accommodation unless they provide sufficient, reliable evidence of a disability.

If you have obtained medical information deeming accommodation to be necessary and proposed a suitable accommodation that the employee refuses, discipline is an appropriate response to address the misconduct. If an employee is refusing to report to work as directed and there is no medical reason that the individual cannot do their job, then there is just cause for discipline, up to and including termination.

All based in Winnipeg at MLT Aikins, Bret Lercher is an associate, David Negus is a partner, Devin Wehrle is an associate, Kristin Gibson is a partner, Sarah Carr is an associate and Shandra Czarnecki is a partner. For more information, visit www.mltaikins.com.

MENTAL HEALTH IN CANADA

48%

Workers reluctant to admit to a boss or co-workers that they are suffering from a mental illness (RBC)

45%

Number of workers citing public stigma as the reason for not disclosing mental illness (RBC)

$2.18

Median yearly ROI for every dollar invested for companies that invest in mental health programs (Deloitte Canada)

46%

Number of employees experiencing burnout (O.C. Tanner Institute)

96%

Number of senior managers who believe their team is experiencing burnout (Accountemps)

79%

Number of employers providing mental health coverage, up from 40 per cent in 2014 (International Foundation of Employee Benefit Plans)