Archives for March 2016

Mental illness is a leading cause of disability in Canada.(1) In fact, at least 500,000 employed Canadians are not able to work due to mental health problems in any given week.(2) Twenty percent of Canadians will personally experience a mental illness in their lifetime, and it is likely that all of us will be directly or indirectly impacted by mental illness through family members, friends or colleagues.(3) As Canadians and medical professionals increase awareness and understanding regarding mental illness, our workplace and human rights laws similarly evolve in attempts to protect mental illnesses like any other disability. While our laws strive to provide adequate workplace protections in relation to mental illness, the art of managing mental health accommodations remains challenging for employers and employees alike.

Visible or physical disabilities can often be easier to understand and to accommodate. Defined physical restrictions or recovery periods provide finite terms which are easier to address and are easier to accept as legitimate needs. Accommodating the invisible barriers presented by mental illness often remains far more challenging. Many persons experiencing mental illness may not wish to share details in the workplace, fearing stigmatization, embarrassment or privacy issues. Other persons may lack awareness that they are undergoing a health-related issue. For example, those struggling with addiction may have little or no self-knowledge that a medically recognized disability drives their compulsion to use. Adults experiencing their first episode related to mental illness may not recognize the signs and symptoms until weeks, months or years after the occasion.

Employers face a variety of different but equally challenging situations. For instance, when an employee silently struggles, employers may be tasked with difficult conversations to ensure adequate inquiry while not overreaching. The inability to clearly define prognosis and restrictions related to mental illness can make it difficult for employers to differentiate between legitimate medical needs versus employee abuse. Employers also often receive questionable and seemingly unsubstantiated accommodation requests, for instance: he cannot work Tuesdays or he cannot drive a Smart Car. No matter how obscure, employers should carefully consider each circumstance on a case-by-case basis and request adequate medical information without overreaching. Even in the very best circumstances where the employer and the employee harmoniously work together, difficulties may arise since the unpredictable and episodic nature of some mental illness can create attendance and staffing issues, and create obstacles even with good faith accommodation efforts.

Understanding and accommodating mental illness is an evolving area that requires a flexible approach. This article will discuss the key legal requirements and interesting related case-law related to workplace mental health issues.