Workers with mental illness excluded 'based only on how their condition is treated'
“Mental illness and disabilities should be treated comparably to physical illnesses and disabilities in employer-employee relationships, regardless of whether the way they are treated medically is comparable.”
So says Victor Kim, an employment and labour lawyer at McMillan LLP in Toronto, after an Ontario arbitrator ruled that a collective agreement provision allowing employees to reschedule vacation if they fall physically sick or get injured discriminated against employees who suffer from mental illness during a scheduled vacation.
The Halton Regional Police Services Board (HRPSB) oversees the operations of the police force in Halton Region, Ont. The board has separate collective agreements covering uniformed and civilian employees, who are represented by the same union.
Both collective agreements contained a provision allowing employees to reschedule vacation time if they were “ill or injured” on the date when their scheduled vacation began, along with two consecutive days after. The provision defined the illness or injury as being hospitalized, convalescing after hospitalization, or receiving home care prescribed by the employee’s doctor. Confirmation by the employee’s doctor was also required.
A worker was scheduled to take vacation on three separate occasions in 2017 – Aug. 7 to 10, Dec. 21 to 24, and Dec. 29 to 31. The worker had seniority that allowed her to claim these in-demand dates.
Worker developed mental illness
However, on Aug. 1, the worker experienced a mental health crisis. Her family doctor diagnosed her with “depressive symptoms with adjustment disorder” with “moderately severe” symptoms. The doctor also recommended biweekly therapy sessions and taking a family camping trip to her trailer, where her husband could help her.
The doctor didn’t think hospitalization was necessary because the worker didn’t have any suicidal ideation. She felt that “therapy and separation from the workplace were the best form of treatment” along with anti-depressant medication.
The worker also didn’t receive home care, but her mental illness disabled her through all three of her scheduled vacation periods. In late November, the worker applied for short-term disability (STD) benefits with a medical form from her doctor saying that she had improved but was still unable to work due to “severe psychosocial stress” and “major defect in all her cognitive functions.”
The worker was unable to reschedule her vacation because she wasn’t hospitalized and didn’t receive home care, as required by the vacation rescheduling provision in the collective agreement, so she was unable to use it at a time when she was healthier.
In March 2019, the union grieved the provisions on the basis that they discriminated against employees with mental illness, contrary to the Ontario Human Rights Code, which includes “mental disorder” in its definition of protected disability. The union noted that it tried to get more expansive language in the vacation rescheduling provision in the last round of collective bargaining, but the HRPSB insisted on retaining “hospitalization” to clarify the seriousness of the medical condition required to permit reinstatement of lost vacation time.
Hospitalization rare for mental illness
An expert in health policy and healthcare utilization testified that advances in technology and disease management have led to many serious diseases being regularly treated without hospitalization and, in the case of mental health patients, only those with concerns of threats to self or to others are normally hospitalized.
The HRPSB maintained that “an employer is not the insurer of the enjoyment by employees of collectively bargained vacation” and it was necessary to have eligibility criteria to allow an employee to get their vacation time back if they were sick during vacation. Using medical criteria as the requirement provided certainty and allowed administration without dispute, the HRPSB said.
The arbitrator disagreed with the HRPSB’s argument that the employer had no obligation to insure the enjoyment of an employee’s vacation, as the rescheduling provision was put in place to insure vacations to a certain degree. In addition, the right to reschedule vacation was not about an employee’s enjoyment of their vacation but whether the time off should be recognized as employer-insured sick days in the event of illness or injury, the arbitrator said.
The arbitrator noted that discriminatory intent is not required to establish discrimination, and discrimination doesn’t have to be “the only dynamic at play.” For there to be discrimination, the three-part test must be met – the worker must have a characteristic protected by the Human Rights Code, the worker must have experienced an adverse impact, and the adverse impact must be connected in some way to the protected characteristic.
The arbitrator found that the first two parts of the test were met, as the worker’s mental illness was a disability protected by the code and the denial of the right to reschedule her vacation and have her scheduled vacation days treated as sick days was an adverse impact.
Discriminatory effect of vacation scheduling
The arbitrator also found that the third element of the test was met. It was established that employees with mental illnesses were not usually hospitalized as part of their treatment, so the chance of an HRPSB employee accessing the vacation rescheduling right was “vanishingly remote” under the language of the provision, the arbitrator said.
“The impugned provision was considered discriminatory because its effect resulted in some disabled workers being denied access to the benefit based only on how their condition is treated by their medical professionals - whether through hospitalization or home care,” says Kim. “Since mental illnesses are rarely treated with hospitalization - unlike physical illnesses and injuries - it’s because the individual has a mental rather than physical illness that they’re being denied the benefit of the provision.”
The argument that using hospitalization as a way of establishing certainty and the seriousness of the illness or injury needed to engage the provision was insufficient to establish the inability to accommodate the worker, said the arbitrator, adding that employers have a “proactive obligation” to ensure workplace rules account for diversity and accommodation. In this context, the HRPSB had an obligation to consider how the provision would affect employees with mental disabilities, the arbitrator said.
Shifting the provision’s language from a focus on the treatment to the symptoms or consequences of the illness would help avoid a discriminatory effect, says Kim.
“Expanding the provision to cover diagnosed mental disabilities and adding a note from a physician as an alternative to the hospital stay/at-home care requirement could be used as a proxy to hospitalization to establish certainty,” he says.
Impact on mentally ill employees
The arbitrator noted that the provision also excluded certain employees with physical disabilities, but employees sharing a protected ground need not be the only ones negatively affected for discrimination to exist. The discriminatory impact of the provision on employees with mental illnesses did not change because some employees with a different ground were also excluded, said the arbitrator.
“The focus was on whether employees with mental illnesses face a discriminatory impact, not whether other employees with illnesses and injuries are also ‘unable to access the vacation rescheduling right,’” says Kim. “The argument that other employees may also face a discriminatory impact does not detract from or impact the question of whether employees with mental disabilities are facing a discriminatory impact.”
The arbitrator determined that the vacation rescheduling provisions discriminated on the basis of mental disability and violated the code.
The arbitrator implied that mental disabilities and physical disabilities should be treated the same, according to Kim.
“The arbitrator accepted evidence and recognized that mental illnesses are often treated differently than physical illnesses but, like physical illnesses, mental illnesses can exhibit themselves through significant symptoms and conditions that interfere with the regular enjoyment of vacation,” he says. “In purporting that the [worker] should be able to rely on the provision while experiencing mental illness, the arbitrator focused on the effects and symptoms of the illness – whether mental or physical - on the individual as the core of the applicability of the provision, rather than the way it is treated.”
See Halton Regional Police Services Board v. Halton Regional Police Association, 2024 CanLII 3402.
