Challenge to identify point when a stress-related condition is a disability
Question: Is workplace stress a disability?
Answer: There is no single agreed definition of what constitutes stress. Stress in the workplace can manifest itself in a potentially wide range of emotional, behavioural, and physical symptoms, some of which will produce no noticeable effect on the employee’s work, while others can be disruptive, causing reduced productivity, absenteeism and difficulty with interpersonal relationships. In some cases, stress can lead to more serious, long-term illnesses.
There is currently no enforceable general legal duty under Canadian law (except in Quebec) to provide a psychologically safe workplace that parallels the duty to provide a physically safe workplace.
There is, however, a legal obligation on the employer to accommodate a stress-related disability.
Not all stress-related conditions will amount to a disability under human rights legislation. The challenge for the employer is to identify the tipping point at which a stress-related condition becomes a disability.
Many people experience stressors in the workplace from time to time. To feel a certain degree of stress is not uncommon and, some suggest, may even be beneficial in the short term, providing the much needed adrenaline to meet a looming deadline. Clearly, such a reaction will not qualify as a disability.
But consider another scenario. The employee is no longer benefiting from the motivating force of pressure, but is experiencing the warning signs of anxiety and burnout as a result of excessive workload.
The employee consults a physician who recommends that he take a few days off or a medical leave of indeterminate duration, subject to medical reassessment.
To be clear, a short absence from work will generally not trigger a duty to accommodate. In such a case, the employer is entitled to apply relevant company policy relating to the administration of sick or short-term leave.
Notwithstanding the absence of a duty to accommodate, the employer may be well advised to consider reasonable adjustments upon the employee’s return, to minimize the risk of further exacerbation of stress reactions, which may ultimately bring the employee under the disability definition.
Stress reactions that are acute and develop into more long-term health issues may, however, be indications the employee has a disability. The definitions of disability under human rights legislation are very broad.
As noted by the Supreme Court of Canada in City of Montreal, “the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual.”
Whether a condition is transient or permanent is one of several relevant considerations.
Also relevant are whether the condition is an ailment suffered by most people from time to time and the extent to which the condition interferes with a person’s ability to participate fully in society.
Both federal and provincial human rights legislation, as well as most collective agreements, prohibit discrimination in employment on the basis of disability.
This includes physical and mental disabilities, including stress-related ones. Whether a disability is physical or mental in nature, the employer has a legal duty to accommodate the employee.
The duty to accommodate is not, however, limitless.
The employer must take reasonable steps to accommodate the employee up to the point of undue hardship.
What constitutes undue hardship to the employer will vary from case to case, but courts have considered the following list of factors:
•financial cost
•disruption of a collective agreement
•problems of morale of other employees
•interchangeability of workforce
•adaptability of facilities
•magnitude of any safety risks
•identity of those who bear the risks
Human rights statutes have narrowed the list of factors that can be relied on to prove undue hardship.
The search for the appropriate accommodation is a multi-party process, requiring the employer and employee (and union, if applicable) to act reasonably and co-operatively.
Some key points to remember about the accommodation process:
•The employee concerned must generally make the request for accommodation.
•The employer is primarily responsible for finding accommodation.
The employee must co-operate with the employer to secure the appropriate accommodation.
•This requires the employee to provide reliable medical information, typically from a qualified health professional, to allow the employer to identify specific accommodation needs.
•The employer can require information pertaining to the nature of the employee’s disability and limitations, but is not entitled to a specific diagnosis of the employee’s condition.
•The employer cannot compel an employee to submit to a medical examination by an employer-appointed health professional, in the absence of a contractual or statutory authority.
•The employee has an obligation to accept and facilitate the implementation of a reasonable accommodation proposal.
•The employer must implement accommodation within a reasonable time.
•If the employee rejects reasonable accommodation, the employer has discharged its duty.
•If accommodation is not possible without undue hardship, the employer must provide an explanation to the employee and be prepared to demonstrate that all efforts were made.
The obligation for all parties to co-operate in the accommodation process is not to be taken lightly.
A failure by the employer to co-operate can result in a finding that the duty has not been discharged and give rise to liability.
In a situation where the employee is subsequently dismissed, a court may award damages for mental distress, based upon the employer’s bad faith in the manner of dismissal.
For more information see:
•Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 CarswellQue 650 (S.C.C.)
•Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CarswellAlta 149, 1990 CarswellAlta 656 (S.C.C.)
•Renaud v. Central Okanagan School District No. 23, 1992 CarswellBC 257, 1992 CarswellBC 910 (S.C.C.)
•Greater Toronto Airports Authority v. Public Service Alliance Canada Local 0041, 2011 ONSC 487.
Danielle Leon Foun Lin is an associate in the Labour and Employment Law groups at Nelligan O’Brien Payne in Ottawa. She can be reached at (613) 231-8369 or [email protected].
