Stressing over accommodation

One year into the pandemic, how is your state of mind?

If you’re like many people, your mental health and well-being have taken a hit over the past year, as we’ve watched countless reports of infections and deaths due to COVID-19 along with stories of long-term health effects. And all this while going through various stages of lockdowns, partial reopenings, and more lockdowns.

However, a recent survey revealed that while a majority of Canadians are heaving mental health issues, more than half haven’t sought medical support. The biggest reasons are that they don’t think they need to seek help, they can’t afford it, or they are embarrassed to ask.

Accommodating mental health

Ultimately, it’s up to individuals to decide if they should seek help, but employers can play a role in how mental health is supported. Many include solutions for employees in their benefits programs and those who do should encourage employees to use them if necessary, particularly during the challenging time of the pandemic.

But regardless of what benefits are provided, employers have a key role in mental health support in another way that could have legal consequences if it’s not done properly — accommodation.

However, the duty to accommodate isn’t the be-all and end-all when it comes to employee mental illness. Employers have a right to run their businesses and have certain considerations when accommodation is on the table, such as the safety of their workplaces and the feasibility of accommodation if it becomes overly complicated or onerous.

Mental illness is a disability under human rights legislation, but accommodation of any protected ground has its limits.

Cases highlight challenges

About a decade ago, a B.C. human rights case involved a bus driver who claimed to suffer from stress, depression, and alcoholism. After being the subject of two customer complaints, he pulled his bus off his route, left his bus at the union hall, and went off to drink. While he was drinking, he called his chief dispatcher and left a message saying he would be sick the next day. In the message, he called the dispatcher names and threatened her.

The next day, the bus driver continued to drink alcohol and left a message for his depot manager that called the manager a profane name. He later called the chief dispatcher again and left a vulgar message. One of his targets was significantly affected by this and the employer fired the driver for “offensive, threatening, abusive and profane” misconduct.

The worker argued that his behaviour was caused by his mental disability, but the B.C. Human Rights Tribunal found that the employer had a justifiable reason for dismissal — the health and safety of its workplace — and the driver wasn’t able to prove that he had a disability or that he was intoxicated when he made the threatening calls: see H. v. MVT Canadian Bus.

In an Ontario arbitration case around the same time, a dairy product manufacturer decided it couldn’t accommodate a worker with mental health issues, including post-traumatic stress disorder, that led to violent and erratic behaviour after 10 years at the plant. Although there was medical evidence that the employee’s condition was controllable through treatment and he had worked for 10 years before his episodes, his still experienced outbreaks of violent and threatening behaviour.

The arbitrator found that the safety risks in the plant were too great to continue employing the employee: see Agropur Division Natrel and TC, Local 647, Re.

Stress versus mental illness

It’s also important to differentiate between stress and mental illness. While the two can be related — the former can contribute to the latter — they aren’t the same thing when it comes to the duty to accommodate. Everyone experiences stress in their job and their home life, but it’s not feasible to treat it as a disability.

There are numerous employment law decisions differentiating stress and mental disability and stating that stress is not something to be accommodated. In 2018, the B.C. Human Rights Tribunal ruled that an employee’s stress that stemmed from her employer’s investigation of her performance problems and her concern that her job was in jeopardy was “situational anxiety or stress” and not a mental illness, in the absence of medical evidence indicating that the employee had a mental disability: see Young v. Vancouver Coastal Health Authority and others.

The past year has been a trying one for most people, leading to increased stress and mental health issues. Employers can play a role in improving the state of mind of their employees — which can have positive effects on productivity and engagement — but their legal duty to accommodate has limits.