‘You don’t want to be an employer that is put under the spotlight for not taking mental health issues seriously’
Most employers are aware that they must accommodate employees to the point of undue hardship, but what exactly does that mean when it comes to a worker’s mental health? And when can discipline can be administered?
From a legal perspective, there are risks to that employer that must be acknowledged and managed or it could turn into a costly oversight, says say Michelle McKinnon, associate employment labour relations at McMillan in Vancouver.
“For purposes of the law, if an employee says, ‘I’m feeling very stressed,’ is that a mental disability that an employer has to accommodate? And if it’s not, when does stress or an employee feeling anxious cross the threshold into a mental disability that then triggers an obligation to accommodate the employee?” she says.
“The law definitely requires that we accommodate mental disabilities but it will be important to first understand what is a mental disability? When do I need to accommodate?”
McKinnon will be speaking at the upcoming HRD Mental Health Canada one-day virtual summit on May 11 and she revealed a little about what she will be advising participants during the panel discussion: “Due diligence: Workplace, mental health, the law. What you need to know.”
Employer obligations
For employers, it’s important to know the legal framework in employment law that governs these types of situations, she says, especially during the troubling times of coronavirus.
“Our obligation as an employer is to remove those barriers and to accommodate them in ways that places them on an even footing with other employees who don’t have mental disabilities,” says McKinnon.
Besides the obvious legal risks that employers may face when not properly accommodating employees who suffer from a mental disability, there is another one that might prove more damaging in the long run, and employers must heed its effects.
“You don’t want to be an employer that is put under the spotlight for not taking mental health issues seriously and being in the news facing human rights complaints because you weren’t sensitive enough to mental health issues in the workplace,” says McKinnon. “There is a reputational risk that your organization is ultimately linked [in] not taking it seriously. All employers and companies need to step it up and need to start taking it seriously.”
“If you’re an organization, and you have a number of awards against you, that says, ‘There’s institutional discrimination’ ̶ that’s bad [and] you want to avoid that type of thing as well,” she says.
Michelle McKinnon
Employers should also be aware of financial penalties that could be levied once a suit has been filed, according to McKinnon.
“They could award damages, for injury to dignity and self-respect. There’s a financial component risk to it, that you can be awarded to pay the complainant because you discriminated against them.”
A recent B.C. case illustrated vividly just how much damages can be awarded, she says.
“In January 2021, the BCHRT [British Columbia Human Rights Tribunal] released a decision in which it awarded a complainant $176,000 as compensation for injury to dignity, feelings and self-respect. This is the highest amount that has been awarded by the BCHRT to date. In addition to injury to dignity damages, the BCHRT also awarded $761,542 for lost earnings, both past and future, and lost pension, as well as $26,655.24 for expenses and disbursements.”
Managing discipline
Managing the “human rights law and discipline” is another tricky area for employers to be aware, says McKinnon, and there are some hard questions employers must ask before going down that road with employees.
“That’s a need to determine whether the conduct is caused either in whole or in part by the mental disability? Or did the discipline arise completely independently from the mental disability, which is often a very difficult question to ask and answer. It’s very difficult to determine if an employee is constantly arriving at work late [if] that could be misconduct. But if that employee is suffering from a very serious depression, that might be the reason why the employee is constantly late,” she says.
And employers should also know that they can’t just slough off any potential issues that might arise in the workplace, says McKinnon, because they have a legal obligation if they see something is amiss with an employee.
“It might be a red flag that something’s going on, and that this is not actually a performance issue and that is where a duty to inquire arises, where the employer would have a duty in those circumstances to enquire with the employee, whether there are other reasons that might be affecting their performance or that might be causing them to be late for work on a constant basis.”
Employers should expect even more disability claims in the wake of the coronavirus, says one expert who spoke to Canadian HR Reporter, as surveys find that many workers’ mental health continues to decline.
