Canadian HR Reporter

CANADIAN HR REPORTER April 17, 2017 EMPLOYMENT LAW 5 We never call it a day. Workplace issues never sleep. That's why our 24 hour line is answered by a Sherrard Kuzz lawyer every hour of every day, even on holidays. Whatever the issue. Whatever the time. Our 24 hour line means our clients sleep well at night even if we sometimes don't. If you're an employer, we're the only call you need to make. 24 Hour 416.420.0738 www.sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz C A N A D I A N L AW Y E R M A G A Z I N E Y E Y E Y R 2013 RANKED JOINT VENTURE BY: Psychological standard progress QUICK FACTS Source: Mental Health Commission of Canada In 2014, the National Standard of Canada for Psychological Health and Safety in the Workplace was released. And in 2017, a research project that tracked 40 employers, representing 250,000 workers, that adopted the standard found the reasons for doing so were: Number of Canadians who can't work due to mental health problems in any given week. Amount employers lost in productivity from absenteeism, presenteeism and turnover in 2011. Total cost to the Canadian economy from mental health issues over the next three decades. 500,000 $6 billion $2.5 trillion Mental health accommodation: Taking a new approach Disability accommodation in the workplace is not a novel topic. Most employers under- stand they have a duty to accommodate where an employee's disability prevents him from participation in the workplace. However, disability management be- comes more challenging when the dis- ability is mental rather than physical — this is often referred to as an "invisible disability." Many of the barriers to eff ective disability management arise be- cause the tools commonly used to assess and respond to a request for accommodation of a mental disability have been developed through the lens of physical dis- ability accommodation. Accommodation of a mental disability may also be particu- larly challenging because of the nuanced requirements each con- dition presents and the fact ac- commodation, if successful, often requires an employer to modify how human beings interact with each other. Disability management is big business Almost half of all short- and long- term disability claims in Canada are related to mental health (in- cluding addiction), according to the 2010 report Able-Minded: Return to Work and Accommo- dations for Workers on Disability Leave for Mental Disorders by Human Solutions. Moreover, the estimated an- nual cost of long-term disability claims in 2008 related to mental health amounted to just over $100 million, and the estimated annual productivity loss related to mental health in Canada in 2003 amounted to about $18 billion, according to the report. Disability management is, there- fore, big business. In addition, an employer bears direct fi nancial risk where it fails to appropriately accommodate an employee's mental disabil- ity. In the 2015 Budd v. 78372 Ontario Inc., the Human Rights Tribunal of Ontario awarded $30,760 to an employee who was fi red after being absent from work for two days due to anxiety and depression. In the 2014 Emra v. Impression Bridal Inc., the Ontario tribunal awarded $58,000 to an employee who successfully alleged his anxi- ety, and the necessary absences from work, were factors in his employer's decision to terminate his employment. In the 2007 Lane v. ADGA Group Consultants Inc., the On- tario tribunal (upheld on review in 2008) awarded about $80,000 to an employee whose employ- ment was terminated shortly after disclosing he had bi-polar disorder. What these numbers illustrate is the need for every employer to proactively and effectively manage mental health in the workplace. Strategies for employers As challenging as it may seem and, at times, be, there are strategies (new and evolving) to assist employers to appropri- ately address and accommodate Disability accommodation in the workplace is not a novel topic. Most employers under- stand they have a duty to accommodate where an employee's disability prevents him from participation in the workplace. Shana French and Brian Wasyliw LEGAL VIEW SUPERVISOR > pg. 12 Notable cases dealing with employee mental disabilities Cooper v. 133668899 Ltd., 2015 CarswellAlta 2625 (Alta. Human Rights Trib.) An employee suffered from work-related stress. Her physician wrote a note recommending she take sick leave "for reason of mental illness (stress)." When the employee spoke to her employer on the phone, there was a heated argument, which culminated in the employee's dismissal. The Alberta Human Rights Tribunal determined the employee's stress was a mental disability within the meaning of the Alberta Human Rights Act, and the physician's medical note explicitly identifi ed the employee's stress as a mental illness. Bellehumeur v. Windsor Factory Supply Ltd., 2015 CarswellOnt 9460 (Ont. C.A.) An employee's mental disability, unknown to his employer at the time of dismissal, played no role in the reason he was fi red. Although the employer had been accommodating various disabilities he reported over time — his alcoholism, his thyroid and cardiac issues — the employer was unaware of the employee's "mental disability and did not engage in discriminatory conduct in fi ring him for workplace violence." The court stated: "They fi red him as they would any employee who engaged in such workplace misconduct." Dupuis c. Canada (Procureur général), 2010 CarswellNat 2243 (F.C.) The Federal Court found that if a manager can detect a change in an employee's behaviour that could be attributable to a mental disorder — major depression, in this case — it is the manager's responsibility to determine whether accommodation is necessary. It isn't a manager's place to diagnose, but "a manager can raise the question with the employee in private and suggest she consult a physician," said the court. "In the meantime, by way of accommodation, the manager can grant the employee leave, which would be particularly urgent if the employee appears to be fatigued, on the verge of a burnout or acting irrationally." ere are new, more eff ective ways to consider mental health accommodation. "It's the right thing to do." Protect the psychological health of employees. Increase employee engagement. 91% 84% 72%

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