In recent years, there has been a societal shift towards increasing the dialogue on issues of mental health and reducing the stigma often associated with mental health issues. It, therefore, comes as no surprise that addressing mental health issues in the workplace has become an increasingly important issue for employers. When addressing issues of mental health in the workplace, employers should be aware of the Ontario Human Rights Commission’s (“OHRC”) recently implemented policy which addresses discrimination based on mental health disabilities and addictions (“Policy”). The Policy, which was published in 2014, provides guidance on the application of the Ontario Human Rights Code (“Code”) specific to mental health disabilities and addictions.
The Policy was intended to provide information to those seeking to understand the Code mandated rights and obligations applicable to mental health disabilities and addictions. It was created to reflect and complement legislation and jurisprudence already in place. The policy, while not binding on courts, is likely to be referred to by courts when deciding issues with respect to the Code.
As with physical disabilities, the Code requires employers to accommodate employees with mental health disabilities and addictions up to the point of undue hardship. The Policy outlines that many impairments such as anxiety, panic attacks, depression, alcohol dependence or addiction have been recognized as disabilities under the Code.
Principles Informing the Duty to Accommodate
The Policy also sets out three main principles which inform the duty to accommodate, and which employers should consider when determining how best to accommodate employees with mental health disabilities or addictions:
1. Respect for Dignity – Accommodation should be provided in a manner that respects an employee’s dignity. The Policy notes that privacy, confidentiality, comfort, individuality, and self-esteem are all important factors to consider in ensuring that the accommodation you provide to an employee respects the employee’s dignity. For example, if an employee requests a change to their work schedule in order to attend a weekly therapy session related to their mental health disability, ensuring that employee’s dignity is respected might require an employer to grant the request and to keep the request and the reasons for the change to the employee’s schedule confidential.
2. Individualization – The Policy also reiterates that accommodation is not a “one size fits all” process; employers must accommodate each employee based on their individual needs. For example, while one accommodation approach might work for one employee suffering from depression, another employee suffering from depression may require a different approach to accommodation.
3. Integration and Full Participation – Employers should develop accommodations that maximize an employee’s integration and full participation in the workplace. The Policy outlines that existing barriers to an employee’s full integration should be removed, unless it is impossible to remove them at a given time. For example, an employee with attention deficit disorder who works in a cubicle area that gets noisy at certain times might need access to a more quiet work space at times, however, the employee should be allowed to work at their regular cubicle when comfortable doing so.
Keeping these three principles in mind, it is important to understand that both the employer and the employee have responsibilities with respect to the accommodation process. As outlined in the Policy, employers must choose the most appropriate accommodation for the employee; however, if there is more than one appropriate way to accommodate an employee, then the employer can choose the less expensive or least disruptive option. Employees are not entitled to their preferred method of accommodation and are responsible for co-operating with their employers during the accommodation process. Moreover, employers are expected to accept employee requests for accommodation in good faith, keep records of accommodations, and maintain confidentiality throughout the accommodation process.
As the Policy reiterates, employers must continue to accommodate employees with real or perceived mental health disabilities or addictions in exactly the same way that they are required to accommodate those with physical disabilities. Determining the appropriate accommodation for an employee with a mental health disability or addiction should be informed by the principles outlined in the Policy, and will require both the employer and the employee to engage in an open dialogue throughout the accommodation process.