The line between mental health accommodation and employee privacy: can employers ask about their staff's mental health?
Mental health disabilities are a protected ground under Ontario's Human Rights Code. This means employers are prohibited from discriminating against employees on the basis of mental illness.
In recent years, we have seen the courts crack down on employers who improperly discriminate against employees because of known mental health disabilities.
For example, in the case Benton v. Richmond Plastics, 2020 BCHRT 82, an employee was terminated on her first day after she disclosed a number of mental health conditions while filling out an emergency contact form and employment application. The CFO told Benton that her medications and mental health situation made her "uncomfortable." At the Human Rights Tribunal, Benton was awarded $30,000.00 as compensation for injury to dignity, feelings and self-respect, along with $35,000 as lost wages.
Similarly in Lambourn v. 2471506 Ontario Inc., 2020 HRTO 526, an employee called in sick and advised that she was not well due to her mental health disability and provided a medical note. Her manager refused to then schedule her for any more shifts before ultimately terminating her. At the Human Rights Tribunal, Lambourn was awarded $4,312 for lost wages and $15,000 for compensation for injury to dignity, feelings and self-respect.
These are two cases where there was a clear disclosure by the employee regarding their mental health condition. However, not all cases are this clear-cut. So, what happens then?
Duty to accommodate vs. duty to inquire
Employers have the duty to accommodate up to the point of undue hardship when an employee comes forward to share their mental health disability and requests accommodation.
But what if an employee does not tell their employer that they have mental health condition even though they may need accommodation?
Yes, this happens, as mental health is often stigmatized. An employee may feel frightened or hesitant to share their mental health concern as they fear that they may be terminated or seen negatively at work. However, the employees' mental health condition may manifest in other ways, such as repeated absences from work, poor or uncharacteristic performance, or "casual" comments about how they are struggling or burned out.
For example, if you encounter issues with an employee where they used to perform excellently, and their performance suddenly declines, it might be a sign that there is something going on. If your employee is suddenly acting "weirdly", such as having emotional breakdowns at work, this might mean something is going on.
In such a case, the employer's duty to inquire may be triggered.
What exactly does the duty to inquire mean?
In Calkins v Broadview Homes (Alberta) Ltd., 2023 AHRC 45, the Human Rights Commission articulated that:
In certain instances, an employer's failure to make inquiries as to an employee's health, before taking steps that adversely affect an employee's employment situation, where an employer has reason to suspect that a medical condition may be impacting the employee's ability to work, has been found to be discriminatory:
- a duty to inquire arises where an employer knew or reasonably ought to have known of a link between an employee's performance and a disability;
- the analysis, which is highly dependent on the particular facts of each case, requires a determination of what was known by an employer about an employee's disability;
- the duty to inquire is an exception to an employee's obligation to disclose relevant disability-related information to their employer. This exception is narrow in nature.
In other words, this means that in situations where employees do not explicitly request accommodation, but something feels "wrong", you may wish to have a conversation with the employee and ask whether there is anything that can be done or any support that you can offer in light of the issues at hand. This is particularly important if the individual may be scared to come forward with a request for accommodation.
As the employer, you might worry, what if I am getting too personal or invading my employee's privacy? Well, here's the key: you can invite the employee to share, but you cannot assume or assign a situation to them. If you communicate to the employee that you're willing to offer support or accommodation, if needed, you will likely have satisfied the duty to inquire.
The duty to inquire does not mean you have to start going into health records or into forced conversations with your employee about their health. Any requests for documentation must follow privacy and human rights laws. If the employee insists that everything is fine and that no accommodation is needed, then as the employer, you may choose to accept their explanation, but be prepared to re-evaluate and offer support again if and when necessary.
Should the employee refuse to disclose if they have a health condition or accept accommodation, and there continues to be significant safety concerns or disruption in the workplace, you may wish to seek legal advice about your options for next steps, which could include implementing corrective or disciplinary action.
Accommodation policies
To help ensure compliance with human rights laws and reduce the risk of situations where you have to guess if an employee needs accommodation, employers should implement clear accommodation policies and procedures.
While there is no mandatory "formula" for a human rights accommodation policy, a good policy should set out clear expectations, uphold fairness, foster inclusiveness, increase consistency, reduce confusion and ensure that workers are aware of how to seek accommodation. Every company's human resource department should be well-informed, consistent and aligned with the company's accommodation process.
To clarify, a good accommodation policy should:
- Explain the purpose;
- Lay out the protected grounds for accommodation and legal framework;
- Clarify the responsibilities of both employees and employers (accommodation is a two-way street!);
- Outline how to submit or make requests for accommodations;
- Address "undue hardship";
- Include a confidentiality and privacy statement; and
- Provide examples of possible accommodation but highlight that the process is a customized one.
Besides meeting legal requirements, a supportive workplace where mental health disability is not stigmatized boosts productivity and morale. By implementing clear, simple but comprehensive accommodation policies and procedures, employers can offer support to employees with mental health challenges to bolster the workplace environment and overall inclusiveness, making it a win-win for all!
