Considering repercussions of the mental health pandemic
By John Hyde
There is another pandemic impacting workplaces, and it is far more insidious than the one we have been dealing with for the past 19 months.
Not only has COVID-19 had detrimental impacts on workers’ mental health, but employees have never been more emboldened to openly discuss those issues and request accommodations.
In this environment, how do organizations find the right balance between respecting their legal obligations and ensuring a happy and profitable operation during turbulent times?
Know your basic human rights obligations
Under human rights laws, workers have the general right not to be treated differently because of a disability.
Disabilities include a non-exhaustive list of mental health conditions, such as anxiety and depression, as well as addiction.
The general obligation extends to all of an organization’s workers — whether short-term, permanent, or contractors. It also applies during the hiring process.
Not all mental health situations are created equally
An employer’s opinion of the veracity of a worker’s mental health condition should never substitute that of a qualified expert.
That said, there is a difference between suffering from an acute episode of stress and having a diagnosed mental health condition. The latter undoubtedly triggers an employer’s human rights obligations, while the former may not.
For example, while most employees have felt the stresses of the pandemic — whether relating to remote work, child-care arrangement and vaccination mandates — that on its own does not trigger an employer’s human rights obligations.
Something more is required, often in the form of a qualified medical opinion.
The duty to accommodate
Once an employer learns of an employee’s mental health issue, it has a duty to accommodate the employee up to the point of undue hardship.
Accommodation is a two-way street requiring meaningful participation from the employee. Employers are not expected to guess an employee’s needs and limitations, nor should they. It is expected to be a collaborative process.
As part of that process, employers should request that an employee’s physician specifically outline what the employee can and cannot do as a result of their mental health issue and provide a prognosis regarding the expected return to their essential work duties. Employers should steer clear of asking for a diagnosis, which could run afoul of privacy laws.
The accommodation process also has an important procedural component.
For example, if an employee asserts that they need time off due to pandemic-induced stress and anxiety, an employer cannot simply ignore the request and later argue that they did not respond due to the absence of a medical note.
The employer would be required to, at the very least, demonstrate that they made reasonable attempts to obtain the necessary information to properly evaluate the request.
The accommodation itself can range from a modification in hours, duties and work location (i.e. in-person versus remote), to time off.
Employees, however, are not entitled to a perfect solution, or even their preferred solution. If an employee demands a lengthy leave of absence where the medical information only supports a reduction in hours, the employer can insist on an accommodation consistent with the medical information.
Considering undue hardship
Accommodation is not an unfettered right. There is a limitation, known as “undue hardship.”
The Supreme Court of Canada has confirmed that the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.
There is therefore no obligation to create an entirely new job for the employee if that is the essence of their accommodation request.
For example, if the job requires on-site attendance and the employee’s mental health condition prevents them from leaving the house, the employer is not required to create a job for them to perform from home.
Similarly, employers are not expected to keep someone’s job available for them indefinitely when there is no likelihood of their return to work for the foreseeable future.
Employers should be careful, however, in jumping to that conclusion. Courts have said that a medical opinion which states that a return to work is unlikely, is not that same as one which expresses uncertainty about when the employee would be able to return to their duties.
Ultimately, any decision to deny an accommodation or to terminate an employee who has requested one, will be heavily scrutinized by a decision-maker and, should only be undertaken under the advice and guidance of experienced employment counsel.
John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.
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