Mental Health Disabilities: The facts
Research estimates that almost one in five
Canadian adults will experience a mental illness or addiction.
In the last version
of the Diagnostic and Statistical Manual of
Mental Disorders – The Fifth Edition (or DSM-5)the number of recognized
mental disabilities increased. Mental disabilities include the generalized
anxiety disorder, panic disorder, clinical depression, intermittent explosive
disorder, insomnia disorder, and alcohol use disorder.
Until recently,
people were generally reluctant to discuss mental illness. Thanks to Clara
Hughes and the Bell Let’s talk program there is a more open dialogue
on the topic and there is less stigma attached to mental disabilities. But the
stigma persists.
Mental Health Disabilities: The law
According to the Supreme Court of Canada,
There is no question but that the mentally
ill in our society have suffered from historical disadvantage, have been
negatively stereotyped and are generally subject to social prejudice.”
As a result, all jurisdictions in Canada
have introduced laws to protect employees with mental health disabilities.
An employer in
Ontario is prohibited from discriminating against an employee because he or she
has a mental disability. Employers are required to accommodate disabled
employees who have mental illnesses under the Ontario Human
Rights Code (Code).
The Ontario Human Rights Commission’s new policy
In June 2014 the
Ontario Human Rights Commission released a new comprehensive policy in this
area: “Policy on preventing
discrimination based on mental health disabilities and addictions.”
It does not have the force of law but the Ontario Human Rights Tribunal
(Tribunal) must consider it if one of the parties before the Tribunal asks it
to do so.
This blog considers two practical issues
that employers are required to address in this area.
1. If an employer
thinks the employee has a disability, is the employer obliged to ask the
employee if he or she has a disability?
We get calls from employers who think an
employee with behavior issues or attendance problems has alcohol or substance
abuse problems. And from employers who think an employee with excessive
absenteeism is suffering from a mental illness; usually depression or anxiety.
On the one hand, an employer violates the
Code if it treats an employee differently because it thinks an employee may
have a mental illness or an addiction. The Policy states in part: “If
organizations scrutinize people with known or perceived psychosocial
disabilities based on stereotypes and assumptions, rather than actual
behaviour, this may be a violation of the Code.”
On the other hand, the Policy suggests an
employer has a duty to ask the employee whether he or she has a disability. In
this regard, Section 13.6.1 of the Policy called “Duty to inquire about
accommodation needs” applies. It states in part:
Accommodation providers must attempt to help
a person who is clearly unwell or perceived to have a mental health disability
or addiction by inquiring further to see if the person has needs related to a
disability and offering assistance and accommodation.”
As a practical matter there is no easy
answer. One approach is for an employer to consistently enforce its policies
but provide an employee with an opportunity to explain his or her behavior
before disciplining the employee for not complying with a policy. This provides
the employee with an opportunity to disclose his or her disability as an
explanation for the misconduct, poor performance, excessive absenteeism etc.
There are no easy answers. The size of the
employer, and the number of vacancies in the workplace (if any) are facts that
will likely be taken into account when deciding whether an employer must offer
alternative employment to a disabled employee as an accommodation measure. An
employer must address this issue on a case by case basis with legal advice.
What does your organization do to include
employees with Mental Health Disabilities?
If you are interested in learning more about Accessibility for Ontarians
with Disabilities Act (AODA) or how to make accessibility a natural part of
your business through the application of Corporate Social Responsibility,
please contact Sandra Broekhof @ 416-579-1035 or sandra_broekhof@sympatico.ca
