Understanding and complying with the employer’s legal duty to accommodate disabled employees is one of the biggest challenges facing labour relations professionals today. This is particularly so in the case of mental health issues. The statistics are telling. It has been reported that one in six Canadians will suffer from mental illness at one point in their lives1 and that one out of every four to five employees is affected by mental health issues every year.2 The management of employees who are suffering from mental health-related illnesses creates a number of unique challenges for employers. For example, employers must often determine if the duty to accommodate is engaged, and whether accommodation can be achieved, with less information than may otherwise be available for other forms of disability. Unlike an employee who has a physical injury or condition, employees who suffer from a mental illness are often reluctant to approach their employer for accommodation. Moreover, while the vast majority of employees suffering from mental illness are not a danger to themselves or others, employers must also balance conflicting responsibilities to ensure a safe workplace free from violence and harassment with their duty to accommodate.
The following discussion will first provide an overview of the duty to accommodate employees with disabilities and the obligations of the workplace parties in the accommodation process. Next, the paper will review unique issues related to the accommodation of employees with mental illness. Finally, the paper will provide a review of recent jurisprudence addressing the intersection of mental illness, violence, and harassment in the workplace, and the conflicting obligations that arise under various employment-related legislation, including human rights and health and safety.
The Duty to Accommodate
Canadian human rights legislation recognizes a disabled employee’s right to be treated equally with respect to employment, without discrimination. This legislation defines “disability” to include mental disorders.
The Ontario Court of Appeal recently defined disability to include mental impairment in Entrop v. Imperial Oil 3 as follows:
… an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning.4
Accordingly, the duty to accommodate may be triggered when an employee’s mental health interferes with the performance of his or her work. As with other disabilities, it is not sufficient for an employee to provide a self-diagnosis. In order to meet the definition of disability under Canadian human rights legislation, there must be a diagnosis of a recognized disability from a health professional in a report or other source of evidence that has specificity and substance.5
Accommodation to the Point of Undue Hardship
There is both a substantive and a procedural requirement to an employer’s legal duty to accommodate a disabled employee. The substantive duty requires the employer to accommodate the needs of the employee to the point of undue hardship. The Supreme Court of Canada has acknowledged that this will require the employer to tolerate some level of hardship.6 To determine what constitutes “undue” hardship, adjudicators look closely at the facts of each specific case. The Supreme Court of Canada has noted that:
The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made.7
The Supreme Court has also made it clear that the test is not whether it is possible for the employer to accommodate the employee’s need.8 To satisfy the duty to accommodate, employers are not required to change working conditions in a fundamental way.9 As a result, the duty to accommodate does not require employers to create non-productive positions. While the duty to accommodate will obligate employers to accept a degree of reduced performance, employees must still be capable of performing the essential duties of the job.
The Procedural Component
Adjudicators have recognized that, in addition to the substantive requirement to accommodate disabled workers, there is also a procedural component to the duty which must be met. The Human Rights Tribunal of Ontario has held that the failure to meet the procedural component of the duty to accommodate is a form of discrimination in and of itself.10
The procedural duty to accommodate requires that the employer both inquire and assess.11 This means obtaining all relevant information about the employee’s disability, at least where it is readily available, including information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work.
The procedural component of the duty to accommodate will only be met once the employee’s workplace limitations are understood by the workplace parties and an investigation has been conducted into possible accommodated positions within the workplace. To satisfy the procedural requirement of the duty to accommodate, an employer must complete an assessment of the employee’s capabilities and then compare these to available jobs in the workplace.
The Union’s Duty
The investigation into possible modes of accommodation is a multi-party inquiry requiring the participation of the employer, union, and the disabled employee. Unions will be required to participate in the process of accommodation where the collective agreement is found to be the mechanism of discrimination, or where the union has impeded reasonable efforts made by the employer to accommodate the employee.12 In Central Okanagan School District No. 23 v. Renaud,13 the Supreme Court of Canada held that a union that causes or contributes to the discriminatory effect incurs liability. To avoid liability, the Supreme Court of Canada further held that a union must discharge its duty to accommodate.
The Employee’s Duty
While the jurisprudence clearly suggests that the onus is on an employer to initiate the process of accommodation, the Supreme Court of Canada has recognized that the task of identifying suitable means of accommodation is a two-way street. Specifically, the Supreme Court of Canada has stated that when an employer has initiated a reasonable proposal for accommodation, then the employee has a corresponding duty to facilitate the implementation of the proposal.14 Failure of the employee to take reasonable steps to facilitate his or her accommodation will result in a complaint being dismissed.15 The jurisprudence is clear that a disabled worker cannot demand a perfect solution but must accept a reasonable compromise.16
Arbitrators have recognized that there is also a duty on a disabled employee to provide the employer who is endeavouring to accommodate him or her with medical updates and feedback on the suitability of the means of accommodation.17 In Keays v. Honda Canada Inc.,18 the plaintiff in a wrongful dismissal action had alleged that the actions of the employer in monitoring his absenteeism were discriminatory. The Supreme Court of Canada rejected this argument, finding that the employer’s attempts to obtain medical justification for the employee’s absenteeism was part of the accommodation process in that it permitted absences from work and relieved the employee from facing potential disciplinary action with respect to those absences.
An employee who is experiencing mental illness is also required to facilitate the accommodation process. In Transit Windsor v. Amalgamated Transit Union, Local 616 (O’Brian Grievance),19 the union claimed that a grievor’s threat against a supervisor was brought on due to clinical depression which was aggravated by stress. With respect to the disabled employee’s duty to assist in the process of accommodation, the Arbitrator stated:
I also note that the Grievor has a duty to act reasonably whenever seeking accommodation at work for her professed disability, to that end; she has a duty to report immediately (to the Employer) when she is suffering adverse consequences from stressful situations: failing to do so in a timely manner may in fact cause her further problems at work, she is advised to be more open and forthright with her Supervisors about her condition in the future, and to relay her concerns in a businesslike manner.20
The employer in this case was required to accommodate the grievor by placing her in a less stressful environment.
Accommodation of Mental Health Issues
When an employee’s disability derives from a mental disorder, adjudicators will look closely at the facts of the incident in question to determine if there is a clear nexus between the illness and the impugned behaviour. Where a nexus is found, the duty to accommodate will be engaged.
In Ontario Power Generation v. Society of Energy Professionals,21 the employee failed to prove that there was a clear nexus between his behaviour and the mental disorder from which he suffered. In that case, a professional engineer with 12 years of service grieved his resignation. The employee had suffered from depression, anxiety, and panic attacks brought on by difficulties in his personal life. He went off work due to his condition and, after approximately 10 months, the employer’s long term disability provider stopped paying his benefits. In frustration, the grievor sent an e-mail to the company and his union representatives resigning his employment. The company accepted the resignation. Two weeks later, the grievor wrote the company and attempted to retract his resignation. The grievor claimed that his actions were the product of irrational behaviour brought on by his illness. The union alleged that the acceptance of the resignation by the company was discriminatory. The Arbitrator found that there was no contemporaneous medical evidence to support the grievor’s contention that he did not have the capacity to make a rational decision when he resigned. Furthermore, the Arbitrator held that there was no evidence in the impugned communication that he was suffering from a panic attack at the time. As such, the union did not meet its burden to demonstrate that the employer’s actions were discriminatory and the grievance was denied; however, in an unusual ruling the employer was still ordered to provide the grievor with 12 months’ pay in recognition of his past service.
Similarly, in Transit Windsor v. Amalgamated Transit Union, Local 616 (O’Brian Grievance),22 the grievor’s clinical depression was considered a mitigating factor after she was dismissed for making a threat against a supervisor but her condition did not absolve her completely of culpability.
Requiring Psychiatric Assessments of Workers Suspected of Mental Illness
When an employer suspects that an employee has a physical illness that prevents him or her from working safely, it may request that the employee obtain mental clearance prior to returning to work. Employers have the same power with respect to mental illness; however, to be justified in requiring a medical assessment of an employee’s mental health, the employer must demonstrate convincing evidence to support its belief that the employee poses a risk to workplace health and/or safety.
In the recent decision of Niagara Peninsula Energy Inc. and I.B.E.W. Loc. 636 (Gallardi),23 a worker was suspended without pay indefinitely after a number of incidents of alleged aggressive behaviour. The employer claimed the behaviour was contrary to its harassment policy. The removal of the suspension was conditional, in part, on the worker consenting to a psychiatric assessment respecting his ability to conduct himself at work in a safe, respectful and cooperative manner. The union grieved the suspension and the condition requiring the employee to obtain the psychiatric assessment. Arbitrator Dissanayake held that the employer must have reasonable and probable grounds to believe an employee represents a risk to health or safety to require a medical evaluation as a condition of work. As the impugned condition was found to be based on the employer’s belief that the grievor had an anger problem, and not that he was actually mentally ill, the employer was found not to have reasonable and probable grounds to require the assessment. The employer’s argument that recent jurisprudence required it to act to preserve workplace safety was rejected. Specifically, the Arbitrator held:
The mere fact that an employee has engaged in conduct that engages Bill 168 does not mean that the employer may require a psychiatric examination. The pre-Bill 168 jurisprudence still applies in that there has to be a balancing of the employer’s right and duty to maintain a safe workplace and the employee’s privacy rights. The test for achieving that balance continues to be the “reasonable and probable” test…24
Therefore, while recent amendments to health and safety legislation respecting workplace violence and harassment have increased the rights and responsibilities of employers in maintaining a safe and healthy work environment, these rights and responsibilities must be balanced with the protections under human rights legislation. An employer may only require that an employee undergo a psychiatric assessment, and receive clearance, prior to returning to work where there are reasonable and probable grounds to suspect that the employee suffers from a mental illness, and the illness creates an increased risk to workplace health and safety. Cogent evidence is required for the employer to meet this standard.
The Corporation of the City of Kingston and C.U.P.E., Loc. 109 25 is one of the few decisions which has been handed down that assists in the interpretation of the new requirements of the Occupational Health and Safety Act.26 The grievor in that case was not diagnosed with a mental illness but she had struggled with issues of anger management numerous times over the course of her 28 years of service. After several explosive outbursts directed at co-workers and supervisors, she was required to attend an employer-funded anger management program. However, just two days after completing the program, she threatened the life of a colleague. Relying on its obligations under the amendments to the OHSA the employer dismissed the grievor. Arbitrator Newman upheld the dismissal on the basis that threats to a person’s life, or suggestions of impending danger, must now be considered instances of workplace violence under the new definition of workplace violence in the statute.
The City of Kingston decision recognizes that employers are now required by law to take steps to protect workers from violence in the workplace. Adjudicators will consider this responsibility when assessing the appropriate level of discipline for an employee who has engaged in violence or the threat of violence in the workplace. This new, more strict, approach does not mean that employers may automatically dismiss any employee who engages in workplace violence; discipline must still be proportionate to the offence and implemented reasonably. However, adjudicators are now required to view instances of violence with the increased seriousness it deserves.
Intersection of Mental Illness, Violence, and the Workplace
As mentioned previously, employees who suffer from mental illness are infrequently dangerous; however, in instances where mental illness results in violence in the workplace employers are still required to fulfill their duty to accommodate. In the City of Kingston decision, there was no evidence that the grievor suffered from a mental illness. However, the Arbitrator implicitly recognized that, if there had been medical evidence of such a disability, the employer’s duty to accommodate would have been engaged. As with all instances of disability in the workplace, employers are only required to accommodate to the point of undue hardship.
Safety is a relevant consideration when determining if the duty to accommodate has been met. In making a determination with respect to balancing safety with the duty to accommodate to the point of undue hardship, employers should consider the magnitude of the safety risk that would be created, and the identity of the parties who would bear the risk.27 Adjudicators are more likely to find that a particular form of accommodation creates undue hardship where it may be demonstrated that there is a risk of significant injury, and where individuals other than the employee seeking accommodation bear part of the risk.
While the jurisprudence continues to develop, it appears that decision makers recognize that the obligation to accommodate a potentially violent employee who is suffering from a mental illness must be balanced with the right, and obligation, on employers to maintain a safe work environment. With the increased importance that has recently been placed on reducing incidents of workplace violence, a lower threshold has likely been created for employers to demonstrate that accommodating a violent employee with a mental disorder will lead to undue hardship. Nevertheless, in most circumstances employers will be found in contravention of their obligations under human rights legislation where they fail to inquire into the limitations created by an employee’s mental disorder or where they fail to investigate possible means of accommodation. Where an employee’s mental illness represents a real threat to co-workers, and the employee cannot be accommodated without creating undue hardship, the employer’s duty to accommodate will likely be met. In all cases, this threshold will be determined by the particular facts associated with the employee in question and the workplace.
Employers are obligated by human rights legislation to accommodate employees suffering from mental illness up to the point of undue hardship. Individuals suffering from mental illness are regular members of the workforce at all levels of Canadian society. When considering an issue with respect to an employee’s work performance, employers should be alive to the possibility that mental illness may be a factor. If the issue of mental health has been identified, employers must meet their obligation to accommodate the employee as they would for any other illness or disability.
Importantly, once it is determined that an employee suffers from a disability affecting his or her job performance, the employer must inquire into the nature of the complainant’s condition, his ability to perform his job duties, and his capabilities to perform alternative available work before determining that maintaining the employment relationship would cause undue hardship. Employees who suffer from a mental illness are required to facilitate this process by providing medical updates and feedback on the suitability of the means of accommodation, and information with respect to the type of work they can perform.
In the majority of cases, violence will not play any part in an employer’s considerations with respect to employees that suffer this form of disability. However, where mental illness and violence intersect, employers must balance their duties under statute to maintain a safe workplace with human rights obligations.
It is clear that nearly every workplace in Canada contains workers who struggle with mental health. To ensure a safe and productive workplace, employers, employees, and unions must work together to develop individual solutions that ensure disabled workers can contribute to the employer’s enterprise and enjoy a fulfilling career.
About the Authors
Sharon Chilcott is a partner at Filion Wakely Thorup Angeletti LLP, a firm specializing in the representation of management in all areas of employment law and labour relations. Sharon has 15 years of experience as an employment and labour litigator, in the courts, at arbitration, and before administrative tribunals, including federal and provincial labour boards. She represents and advises a wide range of federal and provincial sector employers in all aspects of labour relations and employment law, including labour board matters, employment standards, employee discipline and terminations, wrongful dismissal litigation, privacy issues, labour arbitration, human rights, and health and safety. Sharon is a graduate of York University (Glendon College) and the University of Toronto. She was called to the Ontario bar in 1997 and has been a member of the Law Society of England and Wales since 1998. Sharon has co-authored a number of publications for use by human resources professionals and lawyers on labour relations, employment standards and privacy law.
Laura Karabulut represents management in all aspects of labour and employment law, including labour board matters, employment standards, wrongful dismissal litigation, human rights and workplace safety and insurance board matters. Laura received a Bachelor of Arts degree in Political Science from York University in 2000, and Bachelor of Laws from the University of Western Ontario in 2004.
Laura has authored and contributed to a number of publications on labour relations and employment law matters. Recent publications include Public Health in the Workplace 2nd and 3rd ed., a CLV Special Report, and the Canadian Human Rights Act: Quick Reference Guide, 2009, 2010, 2011 and 2012 editions. Laura regularly speaks at conferences and seminars on various topics including public health emergencies in the workplace, including one organized by the Law Society of Upper Canada on H1N1 and the law, as well as seminars on workplace violence and harassment.
Laura is a member of the Law Society of Upper Canada, the Canadian Bar Association, the Ontario Bar Association, the Armenian Bar Association and the Advocates’ Society.
1 http://www.ontario.cmha.ca/fact_sheets.asp?cID=3222 accessed on May 11, 2012.
2 http://www.mentalhealthcommission.ca/English/Pages/OpeningMinds.aspx accessed on November 5, 2012.