New definitions must be addressed by HR: Lawyer
Two new mental health disorders are being recognized in the field of psychiatry.
Prolonged grief disorder and unspecified mood disorder were recently added to the Diagnostic and Statistical Manual of Mental Disorders (DSM) and for employers, these new definitions will have to be considered during an accommodation process.
“An employer has an obligation to accommodate just as much for mental health issues or psychosocial diagnoses as they do for physical injuries and the difficulty that a lot of employers have is there still may be some stigma or reluctance for employees to come forward and say, ‘I’ve received this diagnosis’ or ‘I’ve been diagnosed with a particular disorder,’ or ‘I’m struggling in a certain way, and I need some assistance from you as my employer,’” says Paul Rochford, lawyer at Suzanne M. Dajczak Professional Corporation in Windsor, Ont.
While these new diagnoses present more challenges for employers, the duty to accommodate remains an important legal consideration.
“No matter what the particular jurisdiction you’re in, it’s a good idea on a practical basis for an employer to say: ‘I need to have a process that I follow in these situations that lead me to make making a proposal to an employee to have an accommodation,’ and that’s the starting point for employers and the first step for a lot of them,” says Rochford.
How to begin accommodation process
Two aspects of the process must be undertaken before an effective plan is in place, says Rochford.
“The procedural piece is how do we go about determining whether or not an accommodation is required and then the substantive is what accommodation do we put forward to the employee?”
Once a determination has been put forward that accommodation is the right course of action, a number of questions will have to be asked by employers and HR professionals who will handle all of the details.
“Whether that’s a change in schedule or the ability to work in an alternative location for a certain period of time during the week, or perhaps rearranging the workspace to accommodate whatever the difficulty or challenge that the employee has, how does that measure up in terms of what might be considered reasonable in terms of an accommodation?”
The new DSM diagnoses will compel employers to come up with new ways to accommodate, he says.
“In terms of the practicalities of affording accommodation for example, prolonged grief disorder, there may be certain things, certain parts of our location, certain streets that a delivery driver has to drive down Friday, there was something that occurred to me this morning, that might remind them of the person that the grief disorder is centered around; the loved one that they’ve lost, causing this issue to arise and so maybe the employer has to give them an altered route or that they don’t work in a certain location or whatever that might be.”
“Those kinds of practicalities are the challenge,” says Rochford.
COVID brought on many new challenges around accommodations, especially in the new hybrid and remote workplace, says another lawyer.
Remember the ‘golden rule’
Sometimes the determination is not so simple.
“On things like the unspecified mood disorder, that can be a difficult one sometimes for employers to deal with because of the nature of it, where it doesn’t meet the full criteria for one of the major depressive disorders, or bipolar disorder and so how do you accommodate that?”
Always look for guidance from medical professionals, he says.
“The golden rule here is, be guided by the medical evidence or the medical opinions in terms of what is required? What’s the extent of the obligation you want to have to meet to accommodate your employee, then you need to know, from the relevant medical specialist, what impact does this have on their ability to do their jobs?”
And don’t rely too easily on undue hardship preventing an accommodation from happening, says Rochford.
“The legal authorities have made it very clear, the cases have made it very clear and that might be surprising to some employers that if you’re going to rely on cost as a basis for placing undue hardship for example here in Ontario, the human rights commission has said that if that’s what you’re claiming, then the cost should be so great that it actually affects the sustainability of your business, or its basic nature.”
“It’s a really high bar and I don’t know that employers grasp that all the time,” he says.
For HR professionals, when undergoing an accommodation process “get as much information as they can,” says Rochford.
If you see someone’s workplace performance changing suddenly, don’t immediately think discipline.
“An HR professional would maybe feel something in the back of the mind: ‘Is there something else here that’s causing this change of behaviour in relation to this pattern of behaviour in this employee. You can do it in without breaching their privacy or pushing that conversation too far into their private affairs, you can make discreet inquiries and let them know that there are supports available within the organization.”