Mental Health: Accommodation In The Workplace

The impact of mental health on the workplace has become a hot topic of conversation in Canada.  Workplaces are seeking to respond to mental health concerns and create supportive and productive environments.

Organizations need to have policies in place to address mental health issues in the workplace for a variety of very important reasons, including:

• Mental Health and addictions issues can seriously effect workplace productivity;
• Mental Health and addictions issues are considered disabilities which workplaces are required to accommodate in accordance with the Ontario Human Rights Act; and
• There is a developing expectation that workplaces need to proactively address mental health issues.

Accommodating Mental Health Disabilities

As with any disability, employers are required to accommodate a mental illness disability up to the point where it causes undue hardship for the employer.  The Ontario Human Rights Code includes in the definition of “disability” which requires accommodation both a “condition of mental impairment” and “a mental disorder”.

While the accommodation requirements for a mental health disability are the same as any disability, the stigma attached for many to mental health issues means that many employees will be particularly hesitant to raise accommodation issues.  For this reason, workplace policies should specifically address accommodation of mental health issues.

The duty to accommodate any disability arises when the employer becomes aware of that disability.  While employers are not expected to diagnose mental illness, case law has created an obligation of an employer to accommodate even when a mental illness has not been disclosed by the employee but there are signs that an employee may have mental health issues.

The Ontario Human Rights Commission explains the obligation as follows:

“The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation. On the other hand, employers are not expected to diagnose illness or “second-guess” the health status of an employee.

Example: An employer is unaware of an employee’s drug addiction but perceives that a disability might exist. The employer sees that the employee is having difficulty performing, and is showing signs of distress. If the employer imposes serious sanctions or terminates the employee for poor performance, without any progressive performance management and attempts to accommodate, these actions may be found to have violated the Code.

Before terminating or sanctioning an employee for “unacceptable behaviour,” an employer might first consider whether the actions of the employee are caused by a disability, especially where the employer is aware or perceives that the employee has a disability. Employers should always inform all employees that a disability-related assessment or accommodation can be provided as an option to address performance issues. Progressive performance management and discipline as well as employee assistance supports ensure that all employees have a range of opportunities to address performance issues on an individualized basis before sanctions or termination are considered. For example, severe change in an employee’s behaviour could signal to an employer that the situation warrants further examination.

Mental illness should be addressed and accommodated in the workplace like any other disability. In some cases, an employer may be required to pay special attention to situations that could be linked to mental disability. Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. Prudent employers should try to offer assistance and support to employees before imposing severe sanctions. It should be borne in mind that some mental illnesses may render the employee incapable of identifying his or her needs.”

(Ontario Human Rights Commission Policy and Guideline on Disability and the Duty To Accommodate)

The Canadian Human Rights Commission’s Internal Policy and Procedures for Accommodation of Mental Illness highlights some examples of potential warning signs that a worker is suffering from a mental health issue (although of course any one of these factors, or a combination, could reflect nothing other than a worker having a bad day):

“There are a number of warning signs that can indicate that a person has a mental health problem, such as:

• consistent late arrivals or frequent absences;

• lack of cooperation or a general inability to work with colleagues;

• decreased productivity;

• increased accidents or safety problems;

• frequent complaints of fatigue or unexplained pains;

• difficulty concentrating, making decisions or remembering things;

• making excuses for missed deadlines or poor work;

• decreased interest or involvement in one’s work;

• working excessive overtime over a prolonged period of time;

• expressions of strange or grandiose ideas; or

• displays of anger or blaming of others.”

CHRC Internal Policy on Mental Health Accommodation

The Ontario Human Rights Commission outlines the accommodation obligations of both the employer and employee as follows:

The person with a disability is required to:

• advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
• make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
• answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
• participate in discussions regarding possible accommodation solutions
• co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability

• meet agreed-upon performance and job standards once accommodation is provided

• work with the accommodation provider on an ongoing basis to manage the accommodation process
• discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.

The employer is required to:

• accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
• obtain expert opinion or advice where needed

• take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated,and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate

• keep a record of the accommodation request and action taken
• maintain confidentiality
• limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
• grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
• bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.

(OHRC Guidelines on Accommodation)

Take Aways:

• Workplace Policies should specifically address accommodation of mental health issues and create an open and safe process for employees to approach management with mental health concerns;
• Managers should be trained to be on the alert for potential mental health issues and there should be a process for those issues to be addressed;
• Performance reviews which identify significant changes in employee performance should trigger management to assess the reasons for the performance decline;
• Employers should be prepared to address workplace culture issues which may create hostile environments for disabled workers.

Tools and Resources

A recent report by the Ontario Human Rights Commission took a very detailed look at issues surrounding discrimination around mental health and addictions.  The report is a useful tool for HR and management at an organization to understand the subtleties of mental health issues and how to respond to them in the workplace and is available here.

The Ontario Human Rights Commission Policy and Guideline on Disability and the Duty To Accommodate is available here.

The Canadian Human Rights Commission Internal Policy and Guidelines on Accommodating Mental Illness, which they have offered to act as a guideline for other organizations, can be found here.

The Canadian Standards Association published in early 2013 and voluntary standard addressing Psychological Health and Safety in the Workplace.  It is a great tool and is available by free download here.