An employer must tread carefully in managing mental health issues and ensure a safe environment for reporting and assessing any limitations or accommodations for employees, say Melanie Samuels and Talya Nemetz-Sinchein of Singleton Reynolds
Q: How do we deal with disclosed or undisclosed signs of mental health issues at work?
A: The prevalence of mental illness is a huge concern to employers. In Canada, there are a select few professions that require disclosure of mental illness — such as police or airline pilots — but the majority of jobs do not. For those employers where disclosure by job candidates or employees is not mandatory, this deeply personal topic is challenging to navigate. Given the profound impact that employees’ mental health can have on productivity, morale and culture of an organization, it is imperative for employers to understand their legal obligations for addressing mental health at work.
Employers cannot discriminate against a person regarding employment on the basis of mental disability. While this is not defined in legislation, the Canadian government in its 2006 report The Human Face of Mental Health and Mental Illness in Canada defined mental illnesses as “characterized by alterations in thinking, mood or behaviour — or some combination thereof — associated with significant distress and impaired functioning.”
When an employee discloses a mental health issue to their employer and raises a need for accommodation, it falls upon the employer to accommodate that employee to the point of undue hardship. Managers and supervisors need to be trained to sensitively address accommodation requests. A wellwritten policy is critical so that employees are aware of the procedure for requesting accommodation and managers and supervisors are aware of how to properly handle any such requests. Further, providing employees with the details and access to short- or long-term leave policies is imperative.
When an employee discloses a mental health issue, employers must maintain confidentiality unless there is a perceived imminent danger to that employee or to others in withholding that information. It is also important to make sure the employee is made aware of any resources available to assist, such as an employee assistance program (EAP).
Suspecting a problem
As with any relationship, an employee may not feel comfortable disclosing that they are experiencing mental health difficulties. If an employer suspects that an employee may be suffering from mental illness that is impacting work performance, the employer cannot turn a blind eye and should never discipline that employee. The employer’s duty to inquire is triggered when an employer knows or perceives — or the facts are such that the employer ought to have known or perceived — that an employee has a mental health disability that is the cause of the workplace issue.
Managers and supervisors should be trained on identifying mental illness in the workplace. While there is no specific checklist, significant changes in previously consistent behaviour, increased absenteeism, poor work performance, irritability, lack of co-operation and engagement or overtly emotional behaviour may be indicators.
The employer ought to initiate a conversation with an employee whom it suspects is experiencing mental health difficulties. The conversation should provide the employee with the opportunity to tell the employer what they are experiencing and request accommodation if needed. The conversation is best raised in the context of concern over work performance, and employers should be prepared to substantiate their concerns by referencing specific instances of changes in behaviour, for example, or where an employee’s performance has been uncharacteristically poor. This helps to avoid the perception that the employer is delving into the employee’s personal matters.
Employees should be reminded that disclosure of any issues is strictly confidential and that there is the possibility of accommodation. Two employer representatives should be present and, if in a unionized context, a union representative as well. If an employee refuses to answer questions or denies that there is any issue, disciplinary action could be possible given that the employee provided no explanation for their poor performance.
An employer must tread carefully in managing mental health issues and ensure a safe environment for reporting and assessing any limitations or accommodations for the employee. This will ensure the employee is supported and that the employer meets its legal and moral obligations to its employees.
Melanie Samuels is partner and co-chair of the employment and labour group at Singleton Reynolds in Vancouver