Navigating Mental Health Concerns in the Workplace

Now, more than ever, Canadian workplaces must be prepared to respond promptly and effectively to employees who may be experiencing a mental health disorder.

According to the Centre for Addiction and Mental Health (CAMH), about 1 in 5 Canadians are reporting high levels of mental distress, and 25.7% of those surveyed reported engaging in binge drinking in the previous week, a number that has been relatively consistent throughout the pandemic[1].

Though strides have been made to reduce stigma surrounding mental health, many workers remain reluctant to tell their managers they are experiencing a mental health problem.

Mental illness has a profound economic burden on employees, employers, and society at large. In any given week, at least 500,000 employed Canadians are unable to work due to mental health problems, including 355,000 disability cases due to mental and/or behavioural disorders[2] and approximately 175,000 full-time workers are absent from work due to mental illness.[3] And, the cost of a disability leave for a mental illness is about double the cost of a disability leave due to a physical illness.[4]

The Ontario Human Rights Code prohibits discrimination on the grounds of disability which includes an actual or a perceived disability, mental disorders, and addictions to alcohol and drugs. Employers must accommodate employees with a disability (actual or perceived) and provide a discrimination and harassment-free workplace for all.

The duty to accommodate an employee with a disability has both a procedural and a substantive component and each is as important as the other. Each accommodation must be assessed individually – there can be no “one size fits all” policy on how employees with a disability will be accommodated.

On the procedural side, the duty to accommodate requires an employer to actively explore and consider possible accommodation solutions. Then, the substantive question is whether the employer has offered a reasonable accommodation that would permit the employee to fulfil the essential duties or requirements of the job, unless any such accommodation would cause them undue hardship.

The standard of “undue hardship” is high, particularly for larger employers who are presumed to have a greater ability to bear the financial burden of accommodation and to manage their workforce to accommodate the absence or modified duties of one employee.

An employer is not required to permanently change working conditions in a fundamental way, but has a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to fulfil the essential requirements of his position. An accommodation may require a short-term or long-term leave of absence from work, provided that the employee is reasonably anticipated to be able to return to their position in the foreseeable future. Other common accommodations are modifying job duties and/or hours or providing alternative ways of communicating with or supervising the employee.

Accommodation is a shared responsibility, such that the person with the disability should make their accommodation needs known, to the best of their ability and must cooperate in the accommodation process, providing relevant information upon request, etc.

Where it appears that an employee may be suffering from a mental health disability or addiction, the employer has a duty to inquire to see if the person has needs related to a disability and offer them assistance and accommodation, especially before imposing discipline for related job performance concerns.

Employers should be mindful to respect the confidentiality and privacy of their employees with respect to any mental health issues. Generally, an employer does not have the right to know an employee’s confidential medical information, including any diagnosis and/or treatment, unless such is clearly related to the accommodation being sought. Rather, employers should limit their requests to the following:

• That the person has a disability or medical condition
• Limitations or needs associated with the disability
• Whether the person can perform the essential duties or requirements of the job, with or without accommodation
• The type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job
• Regular updates about when the person will be able to return to work / resume their usual duties

Questions surrounding what type of accommodation may be offered and whether any such accommodation would meet the high test of “undue hardship” require careful consideration on a case-by-case basis. If you require assistance navigating these issues in your workplace, please contact us.

[1] Centre for Addiction and Mental Health, April 13, 2020 (Toronto): One year into pandemic, about one in five Canadians reporting high levels of mental distress | CAMH

[2] https://www.camh.ca: Mental Illness and Addiction: Facts and Statistics | CAMH citing Dewa, Chau, and Dermer (2010). Examining the comparative incidence and costs of physical and mental health-related disabilities in an employed population. Journal of Occupational and Environmental Medicine, 52: 758-62. Number of disability cases calculated using Statistics Canada employment data, retrieved from http://www40.statcan.ca/l01/cst01/labor21a-eng.htm.

[3] https://www.camh.ca: Mental Illness and Addiction: Facts and Statistics | CAMH citing Institute of Health Economics (2007). Mental health economics statistics in your pocket. Edmonton: IHE. Number of absent workers calculated using Statistics Canada work absence rates, retrieved from http://www.statcan.gc.ca/pub/71-211-x/71-211-x2011000-eng.pdf.

[4] Supra,note 2.