Accommodating mental illness is an extremely complex area for employers to navigate.  Unlike physical disabilities, the need for a mental health accommodation is often difficult to detect, and the employee’s medical prognosis can often be less predictable than a physical disability.   An employee may also be reluctant to ask for accommodation due to fear of stigma associated with mental illness.  However, employees are legally protected against discrimination or harassment on account of a disability, including a mental health disability.  In fact, employers have a legal duty to accommodate mental illness in the workplace.

When does Mental Illness Trigger a Duty to Accommodate?

Some mental health problems do not rise to the level of a recognized disability under human rights legislation.  For instance, a generalized complaint of ‘stress’ in the workplace, does not on its own amount to a disability.  There must be at least a diagnosis of some recognized mental disability, or clinically-significant symptoms, as identified from a health professional.  Examples of recognized mental health disabilities include generalized anxiety disorder, depression, alcohol addiction, or drug addiction. This is by no means an exhaustive list.

A diagnosis of a mental illness does not automatically trigger a duty to accommodate.  Many mental illnesses may be successfully managed or treated without the need for a workplace accommodation.  The duty to accommodate a mental illness is only triggered if there are work-related needs arising from the disability.

How is an Employer Required to Accommodate Mental Illness?

Accommodating mental illness can take a variety of different forms, such as a reduced work schedule, a leave of absence, or modified work duties.  Accommodations are meant to enable the employee to meaningfully participate and integrate into the workplace.  There is no single solution for accommodating mental illness.  Each case requires an individual assessment of the worker’s job requirements, their medical restrictions and needs.

Who gets to decide on the Accommodation?

The employer is not required to implement the employee’s preferred or ideal accommodation.  The obligation is only to implement a reasonable accommodation, considering the employer’s business operations and the employee’s medical restrictions as described by objective medical documentation. Even though the employee’s preferences are not decisive, accommodation is a two way street and should generally involve a dialogue with the employee, and the employer should take the employee’s input into consideration.

What if it is Not Feasible to Accommodate the Employee’s Disability?

The employer has a legal duty to accommodate to the point of “undue hardship”.  Accommodation often entails some inconvenience, cost or disruption to an employer, and these concerns are not necessarily an adequate justification against accommodation.   Speculative or anecdotal concerns about cost, health and safety or employee morale are not adequate excuses for refusing to accommodate mental illness. Concrete and objective evidence of undue hardship must be provided.   According to the Ontario Human Rights Commission, the cost standard should be a high one and in order to prove undue hardship, an employer should prove that costs are “so substantial that they would alter the essential nature of the enterprise or affect its viability.”

What are the Employee’s Responsibilities?

An employee seeking a mental health accommodation has a duty to cooperate in the accommodation process. This means that the employee should notify their employer of the disability and their accommodation needs, to the extent possible.   This includes sharing necessary medical information for the purposes of implementing an accommodation.

In many cases, the mental health disability itself my impact the employee’s decision-making, their ability to disclose, seek treatment or cooperate in the accommodation process.  When an employee is unable or refuses to disclose their accommodation needs, this makes implementing an accommodation particularly challenging for an employer.  In some instances, if the employee is able to reasonably communicate their accommodation needs but refuses to, the employer may not be required to accommodate the employee.

However, if an employer reasonably suspects that an employee may be suffering from mental illness and may need accommodation, the employer has a legal duty to inquire and assess the need for a possible workplace accommodation.   It is not a sufficient defence that the employer was unaware of the employee’s accommodation needs, when the employer ought reasonably to have known that the employee has a disability.

Can an Employer Ask for Objective Medical Information?

There is a fine balance between protecting an employee’s right to privacy of their medical information and the employer’s right to know the employee’s medical needs.  An employer is entitled to ask for objective medical documentation confirming the worker’s medical restrictions and the expected duration of the medical restrictions.  A one-liner handwritten note from a physician may not be sufficient to provide a reliable diagnosis of a mental illness, and the employer may be entitled to more specific information pertaining to the employee’s health condition.  However, the worker is not required to disclose detailed diagnosis or treatment information if that information is not necessary for the purposes of implementing an accommodation.

The employer is required to keep medical information confidential, and keep it on a needs to know basis for the purposes of handling an accommodation.  For instance, information pertaining to medical restrictions may need to be shared among certain human resources personnel and the employee’s supervisor(s), who may be required to implement the workplace accommodation.

Author: Jonquille Pak, Whitten & Lublin