Legal obligation to mental health issues

James LeMesurier, lawyer at Stewart McKelvey based in St. John, N.B., fields a question from a reader

QUESTION: I’ve noticed an employee seems depressed lately and I think she might need some help. How should I go about acting on such concerns without embarrassing or offending her? Do I have a legal obligation to intervene if I suspect a serious mental health issue?

ANSWER: Most employers understand and recognize their duty to accommodate disabilities (which include mental disorders) at the workplace. An employer must do everything possible to the point of undue hardship to meet that obligation. In addition to the duty to accommodate, employers have a legal duty under occupational health and safety legislation to keep employees safe and healthy at work.

Recent litigation in Canadian courts confirms employers also have a common law duty to provide a respectful workplace. Each of these duties is not exclusive and all must be balanced accordingly.

Doing nothing is not a solution  —  ignoring obvious signs of mental health issues may even escalate the situation. However, approaching the employee directly when there are no overt symptoms has the potential to interfere with the employee’s privacy and human rights. Thus, any discussion with an employee who seems depressed should keep those rights in mind. Singling the employee out because of difference is the very thing human rights legislation sets out to prevent. The Ontario Human Rights Commission uses this kind of situation as an example of discrimination on the basis of mental disability.

Accordingly, there should be significant symptoms of depression or anxiety exhibited at work to justify entering into a discussion. These symptoms could include missing deadlines, changes in attitude or behaviour that are having a negative effect, arriving late or leaving early or an increase in absenteeism.

Explaining to an employee who is not performing as she has previously that you are concerned about her may open the door to discussing mental health issues. Front-line managers and supervisors should, at the very least, be provided with training on how to recognize underlying symptoms and respond accordingly. 

The response to mental health issues may simply be in the form of assisting and encouraging the employee to seek professional help to deal with stressors, such as providing flexible work arrangements, a temporary change in duties or a  temporary leave of absence.

Employers are under a general occupational health and safety duty to maintain a safe workplace and to take every precaution reasonable in the circumstances. This may mean actively intervening with an employee once a risk has been identified.

Research by the Canadian Mental Health Association in Toronto shows individuals with mental health issues are no more likely to cause occupational health and safety events than the general population.

They may, however, be more vulnerable themselves because their mental health issues make them an easy target for workplace bullies. 

Employers should ensure managers and front-line supervisors are trained to recognize bullying and to deal with workplace bullying before it escalates into a more difficult, and potentially dangerous, situation.

However, once a serious mental health issue is identified that might reasonably pose a threat to the personal health of the employee or co-workers, the employer is under a duty to evaluate the threat and take reasonable steps to eliminate any occupational health and safety risk.

This may not be as simple as removing the individual from the workplace since human rights legislation requires accommodation of the individual to the point of undue hardship. Overreacting on the basis of a perception, and not based on medical evidence, that the individual is not able to be accommodated will likely attract liability.

Suspicion of more serious mental health issues should be taken seriously by investigating and asking “What is the foundation for suspicion?” Suspicious behaviour could include work performance, unpredictable actions or threats made at the workplace.
While a serious performance issue — such as a threat made at the workplace where employees’ safety is compromised — should immediately be investigated and dealt with appropriately.

There must also be room for the employee to explain whether or not her performance is associated with a mental health issue.
Appropriate accommodation should be extended if a mental health issue is identified and supported by medical information.

James LeMesurier is a partner with Stewart McKelvey and is based in the firm’s St. John, N.B., office. He can be reached at [email protected] or (506) 632-1970.    

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