Canadian HR Reporter

By Douglas MacLeod and Fiona Martyn I n any given year, one in fi ve Canadians experiences a mental health or addic- tion problem, according to a 2011 re- port from the Mental Health Commission of Canada. Although mental illness is often invisible, we should not underestimate its prevalence in society. Despite the growing popularity of mental health campaigns such as "Bell Let's Talk," mental illness remains a highly stigmatized issue. Employees are often re- luctant to confi de in their employers about mental health issues due to a fear of losing or jeopardizing their job, facing judgment from colleagues, or being too embarrassed to ask for accommodations. As an employer, navigating the fi ne lines of mental health can be quite challenging, es- pecially since mental disabilities are usually more diffi cult to detect than physical ones. Typically, an employee has a responsibil- ity to inform his employer he requires an accommodation because of a disability. However, as outlined in the Ontario Human Rights Commission's Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions, where an or- ganization is aware, or reasonably ought to be aware, that there may be a relation- ship between a disability and someone's job performance, the employer has a "duty to inquire" into that possible relationship before making a decision that would aff ect the person adversely, such as disciplining or terminating the employee. is procedural dimension of the duty to accommodate is known as the "duty to in- quire." is obligation exists to protect em- ployees with mental health issues from dis- criminatory treatment by their employers. Attendance or behavioural issues So, in what circumstances does the duty to inquire arise? An employer may notice an employee has been absent from work more often or has been acting unusually erratic. In addition to attendance and behavioural issues, the employee may also exhibit per- formance issues. ese could all be signs of a mental illness. Even if the employer has not been for- mally advised of the mental illness, if it suspects an employee may have a mental illness based on changes in her behaviour, then the duty to inquire arises. And before disciplining an employee — especially a termination — the employer must make meaningful inquiries into whether and how the employee can be accommodated. For example, in the 2006 Mellon v. Hu- man Resources Development Canada 2006, an employee's normal behaviour and work performance changed. e employer noticed she was crying at work and she mentioned she was stressed at work. e employer terminated the employee. e Canadian Human Rights Tribunal con- cluded the employer should have inquired after noticing a change in the employee's performance and attitude. It is also important to note that many people with substance abuse problems will not admit to having an addiction, which is considered a disability under human rights laws. Dealing with this kind of situation is particularly diffi cult, especially when there are signs of substance abuse (such as a change in physical appearance or personal hygiene issues). Nevertheless, the employer has a duty to inquire in some cases about an employee's potential addiction. If an employer is aware of facts suggesting a mental health issue exists, the duty to in- quire before disciplining or terminating the employee can be triggered, even if the work- er does not openly disclose the disability. For example, in the 2008 Krieger v. To- ronto Police Services Board in Ontario, a police offi cer was involved in a traumatic incident where he struggled with a suspect who carried a handgun. e offi cer began experiencing post-traumatic stress disor- der (PTSD) symptoms. Shortly after this, the offi cer overreacted to another incident. e employer fi red him for the overreac- tion. But the Ontario Human Rights Tribu- nal found the employer believed the offi cer could be experiencing PTSD, and took no steps to accommodate him. As evidenced in the 2010 McLean v. DY 4 Systems in Ontario, an employer cannot deny the existence of a disability by rely- ing on its own failure to inquire, especially when it is aware of facts that suggest the employee has an illness. e mere fact that an employee does not formally request accommodation does not release the em- ployer of its duty to inquire into whether the person requires accommodations. Medical insights It is also important to note employees are not required to disclose their exact diag- nosis to receive accommodations for their mental illness. If an employee provides a medical note to his employer that does not specify the employee's exact mental ill- ness, the employer still has a duty to inquire and request further information about the medical condition. is information is re- quired to determine the most appropriate accommodation. In the 2012 Lombardi v. Walton Enter- prises in Ontario, the employer argued that the medical note submitted by the applicant failed to specifi cally identify he was being treated for depression and a hypothyroid condition. e employer was already aware from other incidents that the employee was depressed and having suicidal ideas. How- ever, if the employer wanted further infor- mation, it had both the right and the duty to inquire. e tribunal concluded that while an em- ployer has a right to require that an employ- ee provide medical documentation in order to properly fulfi ll the duty to accommodate, the employer cannot sit passively, fail to in- quire about this information and, on that basis, refuse accommodation because of a lack of relevant information. When employers inquire about an em- ployee's mental illness, they can request relevant information about the employee's disability. is includes information about the employee's current medical condition, her ability to perform job duties, and her capacity to perform alternate work duties. Given the prevalence of mental illness in Canadian society, if an employer has a wellness program or short-term disabil- ity benefi t plan, then making employees aware of these benefi ts on a regular basis will increase the chance these benefi ts will be accessed. Accommodating a mental illness not only benefi ts the employee, it also makes good business sense. Enabling employees with mental illness to access support can increase their productivity in the work- place. Furthermore, if individuals with a mental illness are able to receive treatment early, then long-term disability costs may be avoided. Both at MacLeod Law Firm in Toronto, Douglas MacLeod is the principal and Fiona Martyn is a student-at-law. For more information, visit www. macleodlawfi rm.ca. If an employer suspects an employee may have a mental illness based on changes in her behaviour, then the duty to inquire arises. EMPLOYMENT LAW FEATURES Employers have certain responsibilities before disciplining or terminating an employee after after Inquiring after Inquiring after

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