Question: Should an employee who has a poor reaction to normal work stressors be treated differently than one who suffers from severe stress from an extreme incident in terms of mental health accommodation?
Answer: Regardless of whether an employee has a poor reaction to normal work stressors or severe stress from an extreme incident, the employer’s accommodation duties would depend on whether the employee’s issues or difficulties would be captured by a protected ground under the applicable human rights legislation — in this case, either mental disability or physical disability.
Human rights legislation across Canada protects both mental disability and physical disability.
For instance, the Alberta Human Rights Act (AHRA) provides that employers must not discriminate against employees for (among other things) race, age, mental disability and physical disability, and that such characteristics should be accommodated by the employer to the point of undue hardship, unless there is a bona fide occupational requirement.
Mental disability includes any mental disorder, development disorder or learning disorder, regardless of the cause or duration.
There are cases that have found that work-related stress and anxiety can amount to a mental or physical disability mandating accommodation.
For instance, in the 2015 Cooper v. 133668899 Ltd. decision, an employee suffered from work-
related stress as the general manager of a hotel. Her physician wrote a note recommending she take sick leave “for reason of mental illness (stress).”
When the employee spoke to her employer on the phone, the parties began a heated argument, which culminated in the complainant’s dismissal. The Alberta Human Rights Tribunal considered and accepted that the complainant’s stress was a mental disability within the meaning of the Alberta Human Rights Act. In so finding, the tribunal considered the physician’s medical note explicitly identified the employee’s stress as a mental illness.
An employer that suspects an employee suffers from a mental disability is precluded by human rights legislation from discriminating on the basis of that disability, and is under a positive obligation to accommodate the employee to the point of undue hardship.
This obligation exists whether an employee has a poor reaction to normal work stressors or suffers from severe stress from an extreme incident. The duty to accommodate requires an individualized assessment of the circumstances, needs and capabilities of the particular employee and an individualized response based on those circumstances. This encompasses a duty to seek out information.
For instance, in the 2010 Dupuis c. Canada (Procureur général), the federal court found that if a manager can detect a change in an employee’s behaviour that could be attributable to a mental disorder, it is her responsibility to determine whether accommodation is necessary.
Further, it is plausible to consider that erratic requests by an employee and personal conflicts can conceal a mental disorder. Accommodation would be particularly urgent if the employee appears to be fatigued, on the verge of a burnout, or acting irrationally.
Each case is unique and deserves to be assessed individually.
For more information see:
• Cooper v. 133668899 Ltd., 2015 CarswellAlta 2625 (Alta. Human Rights Trib.).
• Dupuis c. Canada (Procureur général), 2010 CarswellNat 2243 (F.C.).
Tim Mitchell practises management-side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225, firstname.lastname@example.org or for more information, visit www.nortonrosefulbright.com.
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