No two minds are alike

The duty to inquire is sometimes part of the duty to accommodate mental disabilities

No two minds are alike

A big trend for employers in managing their workforces over the past few years has been the rise of employee mental health. It’s being recognized that mental health can play an important role in productivity, workplace culture, health and wellness, and other factors. In addition, a benefits package that provides good mental health support can go a long way in recruitment and retention of talent – something that is also high on the priority list for many employers.

While all of this is great in many ways, it’s important to keep in mind that there are also legal obligations relating to employee mental health. The sky can be the limit, but if an employer is closer to the floor, there can be trouble in the form of discrimination or constructive dismissal.

Disability is one of the protected characteristics under any human rights legislation in Canada, and that includes mental disability. Mental disability can take many forms and employers have to be careful that employees who may suffer from such don’t face discrimination in the workplace or that any termination of employment isn’t related to mental disability.

A recent study revealed that different types of employees seek out different forms of assistance for their mental health needs. That means that benefit plans shouldn’t take a one-size-fits-all approach, but it also means that everyone’s mental health issues are different, making it tricky for employers to identify and accommodate mental disabilities.

Duty to inquire around mental health

A key aspect of mental illness and disability that can snag employers is the duty to inquire. Normally, the duty to accommodate doesn’t kick in until an employee requests accommodation. However, the nature of mental illness and the stigma still attached to it can discourage employees from wanting anyone to know about a mental disability, even if they really need help or are having difficulty at work. Also, sometimes someone with mental health issues may not necessarily realize it or be in denial. That’s where an employer may have to inquire.

It's been established in employment law that the duty to inquire is narrow – after all, in most situations employers can’t be expected to know if something is wrong. However, if an employer is aware of or ought to know that there’s a problem – like an employee acting out of character in their behaviour or quality of work – then the duty to inquire is in effect. It could simply mean asking the employee if they have anything with which they need help, or suggesting taking a break. It might be nothing, or it might a disability needing accommodation.

Last year, a BC employer had to pay $20,000 in damages for discrimination and $3,000 in compensation for lost wages after it fired an employee for absenteeism. The worker had been absent due to anxiety and told his manager on one occasion that he was dealing with mental health issues and needed time to sort things out. The BC Human Rights Tribunal found that at this point the employer should have inquired to find out the extent of the employee’s issues and whether accommodation was needed. The employer didn’t, but the absences were related to the worker’s mental disability, meaning that the firing was also related to the disability and therefore discriminatory.

An Alberta employee went on medical leave after a diagnosis of acute anxiety and stress following a demotion, but the employer terminated her employment while she was on leave. The employer didn’t determine whether the employee could be accommodated or consider that she was on medical leave, and as a result the Alberta Human Rights Commission awarded the employee $30,000 in damages for injury to her dignity from the discrimination.

Normal stress from dismissal

While severe anxiety and stress can cause a mental disability, not just any stress does it. Obviously, any termination of employment and the related circumstances are going to affect someone, but decisionmakers have been sure to assert that normal stress stemming from a dismissal is not a disability needing accommodation or deserving of extra damages. A BC worker who claimed that she developed a mental disability due to a toxic workplace and then being fired was unsuccessful because the tribunal found that her workplace stress was due to management investigating performance problems – within the normal course of managing employees – and the employee didn’t provide any medical documentation showing her stress was beyond normal workplace levels or effects.

The BC tribunal reached a similar conclusion in the case of a worker who alleged her employer failed to accommodate her and exacerbated her mental disability with an unmanageable workload. The evidence showed that the employer supported the worker’s medical leaves and continued to seek medical information for a return to work. There was also no medical evidence that any adverse impacts from workload were related to the worker’s disability, the tribunal said.

Mental health issues can also affect a person’s perception – which can make dealing with an employee and managing a medical leave or return-to-work process more difficult, but can also affect whether there is actually discrimination. In another Alberta case, a worker who was on stress leave following workplace harassment felt that a return-to-work consultant also harassed her while she was on leave, but the Human Rights Commission found that the worker’s “fragile emotional state” made her unable to collaborate and affected her perception of the employer’s attempts to help her. Objectively, the worker didn’t experience adverse impacts that could be discriminatory, said the commission in dismissing the complaint.

Everybody is different, especially when it comes to their mental health needs. But if someone has mental health issues that lead to a disability affecting their work, the employer always has a duty to accommodate – and sometimes to inquire first.

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