How Does Mental Health Accommodation Work in Ontario?
As the stigma of mental health issues continues to diminish, workplaces are prioritizing mental health accommodations. The Ontario Human Rights Code prohibits discrimination on the basis of numerous protected grounds, including disability. Mental health is covered under the prohibited ground of “disability”. Employers must make all reasonable efforts to accommodate employees with mental issues to the point of undue hardship. But, how does mental health accommodation work in Ontario?
Is Mental Health Considered a Disability Under the Code?
The duty to accommodate has both a substantive and a procedural component. The procedure to assess an accommodation (the process) is as important as the substantive content of the accommodation (the accommodation provided). As a result, the employer must inquire into all relevant information necessary to determine how the mental illness affects the employee’s job duties, engage in a meaningful consultation with the employee, and give thought and consideration to the issue of accommodation, including what, if any, steps could be taken to accommodate the employee’s disability.
The Ontario Human Rights Tribunal has made it clear that employers who do not properly accommodate the needs of employees with mental illness contravene the Code and are liable for significant damages (Lane v. ADGA Group Consultants Inc., 2007 HRTO 34).
Can Employers Accommodate Disabilities They Are Unaware Of?
Across the country, the British Columbia Human Rights Tribunal, further commented on both the employee and the employer’s role in accommodating mental health issues. In particular, the employee has a duty to participate in the accommodation process, particularly providing relevant documentation to support their requests.
In Redmond v. Hospital Employees’ Union, 2024 BCHRT 203 the BC Tribunal dismissed an employee’s complaint that her union discriminated against her, on the basis of mental disabilities, by failing to accommodate the mental impacts of a brain injury. In particular, the relevant medical information to support the accommodation request was not provided until after the employee’s termination. As a result, the BC Tribunal noted: “An employer cannot accommodate disabilities which they don’t know exist”.
Where Can You Get Advice on Mental Health Accommodations in the Workplace?
As a result, accommodating a mental illness is a two-way street. Employees must provide evidence of a mental illness and how it impacts their ability to perform their job. This enables employers to engage in both the procedural and substantive accommodation process. Without such information, employers cannot be expected to perform their duty.
If you would like to get advice on accommodation issues, please contact Whitten & Lublin online or by phone at 416- 640-2667.
Author – Sophie Teversham