An employer could have a duty to accommodate in severe cases
It’s been a rough go of it for many of us since early 2020. The pandemic has created a lot of stress for people in their personal lives that has combined with stress related to our jobs, and it hasn’t been a fun time.
A recent survey of workers around the world found that nearly four in 10 have been suffering from burnout over the past 12 months, with one-third saying their overall wellness has declined because of it. While in many cases hybrid work has allowed workers to improve their work-life balance, one-third of Canadians in the survey say their workload has gotten worse in the past year and nearly one-half say their mental wellbeing has suffered.
With many jobs, a certain amount of stress comes with the territory and it’s common for people to be stressed about their work. Pandemic-related stress on top of it doesn’t help, although another survey from 2019 — before the pandemic — found that more than one-third of employees were more stressed from their work than they were five years previously.
When should employers take notice and do something about stressed employees? When do they have to?
It’s a good idea for employers to take note of the stress levels of employees, as it can lead to difficulties such as higher employee turnover and increased benefit and absenteeism costs. But the legal liability element is something that should be on employers’ radar.
Courts and tribunals have, of course, distinguished between normal work stress and more extreme stress that can create mental health issues and lead to a mental disability. It’s the latter that employers should be particularly concerned about when it comes to liability.
In 2015, the Alberta Human Rights Commission found that an employer should have accommodated a worker rather than firing her following a heated argument with management. The reason was because prior to the argument, the worker had provided a note from her doctor recommending sick leave “for reason of mental illness (stress).” Even though the stress stemmed from work-related issues, the doctor’s note confirmed that the worker had a mental disability that should have been accommodated: see Cooper v. 133668899 Ltd., 2015 CarswellAlta 2625.
On the flip side, the B.C. Human Rights Tribunal in 2018 dismissed the claim of a worker that the stress she suffered from a toxic workplace caused her to develop a mental disability that should have been accommodated. The tribunal determined that the worker’s stress was caused by the employer legitimately investigating performance problems that had been raised and the worker worrying about her job. In addition, the worker didn’t request any accommodation: see Young v. Vancouver Coastal Health Authority and others, 2018 CarswellBC 260.
Two 2018 arbitration decisions in Ontario saw the arbitrators determine that there was a difference between mental stress claims “relating to employment” and those “arising out of the course of employment.” Those relating to employment, such as job duties, discipline, or dismissal, were expected stressors and not out of the ordinary. The latter type, however, could involve harassment or other unexpected trauma that could lead to entitlement to accommodation or workers’ compensation benefits.
Work can be stressful and the pandemic experience has piled on more stress with which people have had to endure. Employers can’t be expected to help every worker with normal, expected stress, but they should be ready if that stress is too much for a worker to handle, or is the result of extreme circumstances that shouldn’t occur in the course of employment. It’s always a good idea to explore options for accommodation, whether it’s needed or not.
It might help make everyone feel a little bit more relaxed and serve as a way to battle some of that burnout.
