Mental Health in the Workplace and Accommodation

We have seen an increase in questions and issues related to mental health at the workplace since the onset of the COVID-19 pandemic. In some instances, there may be a noticeable or obvious impact on an employee's performance at work related to mental health. In others, not so much.

It is important that employers and employees alike understand their rights and obligations relating to mental health in the workplace. In this blog post, we discuss the human rights component of mental health in the workplace, including the duty to inquire and the duty to accommodate.

1) Duty to Inquire

For a variety of reasons, including the continuing stigma surrounding the issue, employees may feel embarrassed or uncomfortable disclosing a mental illness to their employer, even if it is impacting their ability to perform their work duties. Is there an obligation for employers to inquire about whether an employee has a mental health disability and requires accommodation?

In short, the answer is yes. If the employer knows or ought reasonably to have known that an employee has a disability that might impact their work performance, they are obliged to make reasonable inquiries with the employee before taking disciplinary action. This is known as the "duty to inquire".

This is the case even if the employee does not volunteer information about their disability. All that is required to trigger the employer's obligation is if an employee's conduct suggests they may have a disability that requires accommodation. Examples of situations where employers have been found to owe a duty to inquire include:

• The employer had knowledge the employee had suffered a traumatic workplace incident, that the employee was upset and sought medical attention, and that she requested a 3 months' leave of absence.
• The employer was aware it had a workplace bullying and harassment problem, that the employee had been a victim, and that the employee had taken a medical leave of absence due to her workplace experience.

That is not to say that employers are expected to be mind readers or be on hyper-alert for every employee's mental health. There must be reason for the employer to suspect the employee's conduct is related to a disability for the duty to inquire to be triggered. For example, the duty to inquire was found to have not been triggered in the following circumstances:

• An employee was terminated after calling in sick twice during the first four days of work. She did not inform the employer that she had depression and anxiety, or request that the employer accommodate her need to take time off work because of a disability.
• An employee was terminated after walking off the job mid-shift due to an anxiety attack triggered by criticism from her supervisor. At the time of termination, the employer was not aware the employee had a disability as it was never raised by her and was not stated in a medical note she provided.

To summarize, employers are not required to inquire about every employee's mental health. Nor are they held to an unreasonably high standard of awareness. Rather, where an employee's workplace conduct notably changes or there is reason to believe it may be related to a mental illness, employers should be alert, and take steps to inquire with the employee about whether they require accommodation.

2) Duty to Accommodate

Once it is established that an employee might have a mental illness that is impacting their ability to perform their work duties, the duty to accommodate is triggered. The duty to accommodate has both a procedural and substantive component.

The procedural duty relates to the process of accommodation. The employer must work with the employee to assess the employee's individualized needs, consider whether accommodation is required, and, if so, the steps required to accommodate. This encompasses the duty to inquire, as discussed above.

The substantive duty relates to the actual accommodation provided to an employee. What amounts to appropriate accommodation is very situation specific. However, the obligation is to accommodate an employee's disability-based need, rather than simply the employee's preferences.

Importantly, accommodation is a co-operative and collaborative process. Employers and employees should work together to implement accommodation that is appropriate in the circumstances. For employees, this may include providing medical documentation confirming they have a mental illness, as well as outlining the limitations or needs associated with their illness, and the type of accommodations that may be required to allow them to fulfill their essential work duties.

There is no one size fits all approach to accommodation. Mental illnesses, like any other illnesses, can vary greatly, and the accommodation provided should be tailored to reflect that. Some examples of accommodation include:

• Modifying the employee's work schedule or providing a flexible work schedule;
• Providing the employee with a modified workspace or allowing them to work from home;
• Temporarily adjusting the employee's work duties;
• Providing the employee with extra training or individualized training; or
• Permitting the employee to take a leave of absence.

There are limits to the duty to accommodate, however. Accommodation does not have to be provided if it would cause the employer to suffer undue or excessive hardship. In considering whether accommodation would cause undue hardship, the following three factors are relevant:

• Costs;
• Outside sources of funding, if any; and
• Health and safety requirements, if any.

Takeaways

Mental health at the workplace is an important issue that requires awareness and a cooperative approach. Employers are encouraged to foster a work environment that supports the mental health of their employees. If it is known or appears that an employee may require accommodation due to a mental illness, the employer should take reasonable steps to inquire and accommodate, if necessary. On the flipside, employees who are living with a mental illness should collaborate with their employer to develop suitable accommodation solutions.

Lee Workplace Law would be happy to answer any questions you may have about human rights in your workplace.