Accommodating Mental Disability: 5 Practical Tips
Published:
May 11, 2018
Author(s):
Updated July 4, 2024
It can be challenging for employers to fulfill their legal duty to accommodate an employee under human rights laws regardless of the nature of the request – but particularly so when the request is to accommodate a mental disability. Yet the growing prevalence of mental illness combined with the significant negative impact of the COVID-19 pandemic on Canadians’ mental health make it critical that you understand your duty to accommodate mental disability in the workplace.
The COVID-19 Pandemic. Perhaps no other single event in recent history led to a greater decline in the mental health of Canadians generally, and Canadian workers in particular. But while the COVID pandemic is over, the mental health impacts of COVID aren’t: some Canadians continue to suffer from mental health issues as a result of “post-COVID condition” (aka long COVID).
Mental Illness. Concerns about the increased incidence of mental illness existed even before the stress of the COVID-19 pandemic hit. According to the Centre for Addiction and Mental Health, 20% of Canadians will experience a mental illness in any given year and 500,000 Canadians are unable to work due to mental illness – and thus mental disability – in any given week. In fact, mental illness is a leading cause of disability (30% of disability claims and 70% of disability costs relate to mental illness). And it’s not just a Canadian challenge; according to the World Health Organization (WHO), it’s a worsening global challenge.
Recent years have seen a laudable effort to increase visibility and understanding of mental illness and the disabilities it causes. But despite this, employers can still find it challenging to fulfill their duty to accommodate mental disability in the workplace. Here are five practical tips to help you do so.
1. Understand What Your Role Is – and What It Is Not
Employers do have a role to play in their employees’ mental health in the workplace – but that role has limits:
Legal Duties. Employers’ legal duties to employees extends to mental disability.
- Duty not to discriminate. The law across Canada is consistent: employers have a legal duty under human rights laws not to discriminate in employment based on mental disability and a corresponding duty to accommodate an employee’s mental disability to the point of undue hardship.
- Duty to provide a “safe” workplace. Employers have a legal duty under occupational health and safety laws to provide a “safe” workplace. There’s some legal authority for the proposition that this obligation encompasses an obligation to provide a psychologically safe, as well as a physically safe, work environment. Employers must be prepared to take steps that are reasonable in the circumstances to protect their employee’s physical – and mental – health. Some might argue mental health is an individual responsibility without connection to the workplace. But while each employee is responsible for their own health and work performance, the employer also has an essential role to play in creating a healthy work environment that promotes employee well-being and productivity. This can include fostering a culture that’s inclusive and healthy, ensuring managers and supervisors are trained to recognize and respond to employee mental health issues, providing access to mental health resources for employees, and meeting their legal obligations not to discriminate based on mental disability (or any other basis).
Limits. The employer’s role is, however, limited. It can be tempting to go further and play a greater role. Resist this temptation. There are risks associated with doing so for you and for the employee:
- Don’t be the employee’s mental health practitioner. The law doesn’t expect the employer to diagnose or treat an employee’s mental illness. And doing so could be dangerous for you and the employee. Mental illness and the disabilities they can cause can be complex and difficult to diagnose and treat – even for physicians and mental health practitioners. The employer will rarely have either the expertise or all of the information that’s required to do so, and an employee could come to harm if you attempt to play a role for which you’re not qualified.
- Don’t be the employee’s confidant. It can be easy for a manager or supervisor to become a shoulder for the employee in the throes of a mental health challenge to lean on. You must – and should – exhibit compassion toward any employee faced with a mental health crisis or disability. But the manager that becomes too personally and closely involved might be less able to be objective. This could undermine their ability to ensure the employee has the resources and support they need, and to meet your legal obligations to both the disabled employee and to all other employees in the workplace.
2. Create a Mentally Healthy Workplace Culture
The most obvious trigger for the duty to accommodate a mental disability is where the employee expressly communicates their need. But disclosure of a mental disability can be hard for an employee. We’ve come a long way in removing the stigma surrounding mental illness and disability, but it’s not completely gone. One of the greatest challenges that employers – and employees – still face with accommodation of mental disability is employees’ reluctance or refusal to share their challenges or information due to fear of stigmatization, denial or privacy concerns. According to November 2021’s The Mental Health Index by LifeWorks (Canada), of those who haven’t used mental health services through their employer, 10% cited concerns about confidentiality as a reason for not doing so. Some employers take the view that no news is good news because an employee’s disclosure triggers obligations for the employer that can sometimes be challenging for it to fulfill. But it benefits no one – the disabled employee, their co-workers, or ultimately the employer – to have a disabled and likely unproductive employee in the workplace. Knowing there’s a need gives the employer the ability to manage the issue and its workplace for the benefit of all. An employee who might or does have a mental disability is more likely to come forward when they perceive the employer is open to them and their needs. Some ways in which employers can create a workplace culture that’s perceived to be – and is – mentally healthy include:
Implement an Accommodation Policy. A well-written and properly implemented accommodation policy can be key: it can set the tone in a workplace by acknowledging the employer’s and the employees’ role in the accommodation process and clarifying acceptable and unacceptable behaviours; and it can play a role in encouraging disabled employees to seek the assistance they need, giving employees a good sense of the process to follow and what to expect if they do require and seek accommodation. According to November 2021’s The Mental Health Index by LifeWorks (Canada), of those who haven’t used mental health services through their employer, 10% said they’re not clear about how to access support.
Participate in workplace mental health initiatives. There’s no shortage of campaigns and programs intended to raise awareness around mental health generally, and mental health in the workplace specifically. For example, the Canadian Mental Health Association (CMHA) offers many accessible resources and promotes mental health awareness with its annual CMHA Mental Health Week, as does Bell Canada’s Bell Let’s Talk. The resources for employers and employees are numerous and free. Use them.
Respond appropriately. If an employee does ask for accommodation based on mental disability, accept that request in good faith and avoid stigma, stereotypes, and assumptions about mental health.
3. Train Managers & Supervisors to be Alert to Signs of Mental Illness
It’s not the employer’s role to diagnose an employee’s mental illness. But in light of employers’ duty to inquire, it’s arguably in employers’ best interests to train managers and supervisors to be aware of and alert to mental illness signs and symptoms or indicators that suggest an employee might be suffering from one, such as:
- Consistent late arrivals.
- Frequent (and perhaps unexplained) absences.
- Lack of cooperation or difficulty working with colleagues.
- Decreased productivity.
- Increased accidents or safety issues.
- Difficulty concentrating or remembering things.
- Expressions of strange or grandiose ideas or ups-and-downs.
- Decreased interest in or involvement with work.
- Displays of unexplained anger or blaming others.
Response. If the employer forms the suspicion an employee is suffering from a mental illness that’s affecting them in the workplace raising a duty to inquire, the best approach in many cases is to meet privately with the employee to discuss its concerns. Before doing so, get prepared and think about:
- Exactly what behavior or performance issue is of concern?
- What’s the reason for the concern? For example, is the employee failing to meet an objective standard or is their behaviour having a negative effect on others?
- What are the policies that apply if the employee does need mental health support or accommodation?
- What resources does the employer have to offer the employee in that case?
- What are some of the possible accommodations, at least in the short term, until the employee can provide the necessary information to address an accommodation request?
4. Gather All the Medical Information to Which You Are Legally Entitled
Obtaining the necessary medical information in the context of a mental disability can pose some particular challenges beyond employee privacy concerns.
Exercise Patience. An employer’s frustration and impatience has resulted in many unfavourable human rights awards against employers. Employers are more accustomed to – and more comfortable with – dealing with physical disabilities, which are often visible and for which the nature of the disability, and often the restrictions, are more readily articulated and understood. In contrast, it might be difficult to achieve the same level of understanding of the nature of and restrictions associated with a mental disability. And treatment of mental health disabilities is often complex, involving ongoing and varying treatments where the patient’s restrictions and needs can change, and involving multiple doctors, counsellors and other medical professionals. This can translate into a longer time frame for you to obtain the medical information you need to determine the employee’s restrictions or limitations so you can formulate appropriate accommodation solutions – and fulfill your legal duty to accommodate.
Protect Confidentiality. Given the continued stigmatization of mental illness, it’s not surprising that employees’ concerns about the confidentiality of their medical information is particularly acute when it’s about their mental health. Whenever you obtain medical information from or about an employee of any kind, it’s critical to take steps to maintain the confidentiality of that information. Share it only with those who have a need to know – but make sure to share what is necessary with those who do need to know and understand your duty to accommodate.
5. Be creative, thorough & genuine when identifying & assessing accommodation options
Some common accommodations of mental disability include:
- Flexible or modified scheduling. This could include changing the existing schedule, retaining the existing schedule or working reduced hours. For example, allow an employee with an anxiety-related mental disability to work earlier or later to avoid crowds, or permit more frequent or differently scheduled breaks.
- Modified work environment.This could be changing the employee’s workspace or their location. For example, physically move an employee’s workspace, such as to a window to allow access to natural light or allow an employee to work from home for some or all of the time.
- Modified supervision. Consider modifying instructions or feedback or providing coaching.
- Modifying certain job duties.Adjusting the employee’s job duties, including changes in training, is another possible solution.
- Individualized rate of absenteeism.Sometimes, the required accommodation is for the employer to simply tolerate a level of absenteeism that, but for the disability, would be unacceptable and excessive and allow for an individualized rate of absenteeism. For example, allow time off for employees to attend medical, counselling or therapeutic appointments.
- Reassignment. An employer’s duty to accommodate can extend to reassigning job duties among employees, or transferring an employee to create or free up a position that an employee requiring accommodation can successfully perform.
Ultimately, however, the employment contract is an exchange of work for pay. Every employee – even one with a mental disability – must be fit to work and able to adequately perform tasks in a productive manner. If an employee isn’t fit to work in any position, place the employee on sick leave or a leave of absence. In addition, an employee with a mental disability isn’t entitled to any different treatment, or any greater level of job security, when the mental disability is unrelated to whether they can meet the job’s skill and performance requirements. Thus, an accommodated employee may be subjected to discipline for poor job performance where their poor performance in the position is unrelated to their disability.
Outside advice. Employers aren’t expected to be experts in mental health or mental disability. Mental illness and the mental disability it can cause are complex medical issues, and there may be times when the employer needs to seek expert medical advice or guidance – but ensuring the confidentiality of the employee’s medical information is maintained. Employers seeking to fulfill their duty to accommodate can often also benefit from legal advice.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss how we can help you understand how to fulfill your duty to accommodate employees’ mental disability and check out our MC Training Workshop, Duty to Accommodate Dilemmas, to train your managers and supervisors how to accommodate mental disabilities in your workplace.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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