By Alix Herber and Hadiya Roderique
In Canada, employers have a duty to accommodate individuals suffering from a disability to the level of undue hardship. In the case of an employee with a physical disability, it often can be relatively straightforward to identify accommodations that can be implemented.
In contrast, the accommodation of mental illness isn’t always as easy to define, categorize, or understand. A failure to manage and accommodate mental illness can lead to significant liability on the part of the employer. In the recent May 2010 decision of Ford v. Peak Products Manufacturing, the employer was ordered to pay a former employee with 1.5 years of service a whopping $40,000.
Background
The Canadian Mental Health Association defines mental disorders as disorders characterized by alternations in thinking, mood, and/or behavior associated with distress and impaired functioning. Common mental disorders include depression, anxiety, and addiction. Mental illness has an enormous impact on the workplace and the Canadian economy. Consider the following statistics:
- Twenty percent of all Canadians will experience a mental illness in their lifetime. (Canadian Mental Health Association, Fast Facts: Mental Health/Mental Illness)
- In Canada, mental illness is the second leading cause of human disability and premature death. (Institute of Health Economics, How Much Should We Spend on Mental Health?)
- Every day, 500,000 Canadians are absent from work because of psychiatric problems. (Centre for Addiction and Mental Health, Mental Health Addiction Statistics)
- Mental health is the number one cause of disability in Canada, accounting for nearly 30 percent of disability claims and 70 percent of the total costs. (Insurance Journal 2003 as cited by the Government of Canada in The Human Face of Mental Health and Mental Illness in Canada 2006, page 41)
Potential liability for employers
A failure to manage and accommodate mental illness can lead to significant liability on the part of employers. In the Ford v. Peak Products Manufacturing decision, an employee experienced a relapse of a mood disorder experiencing panic and anxiety attacks and took time off of work as a result. The return-to-work date was extended by the employee’s treating physician several times. The employee was ultimately terminated because of her extended absence, two weeks before she would have qualified for disability benefits. The employee then suffered an acute relapse of her mental illness.
After the employee filed a discrimination complaint, the British Columbia Human Rights Tribunal decided that the employer had no information that the employee wouldn’t return to work in the reasonably foreseeable future. Further, no warning had been provided that her employment was at risk. While the absence caused some inconvenience to the employer, there was no undue hardship. As a result, the Tribunal said that the employer had discriminated against the employee as a result of a disability-related absence. The result – an employee with 1.5 years of service received $40,000 in damages.
What can employers do?
To avoid this type of liability, employers across Canada should take steps to familiarize themselves with the accommodation of mental illness. Examples of accommodations that employees with mental illness might request include:
- Flexible scheduling – at the start or end of a shift, part-time, or frequency of breaks.
- Changes in manner of supervision – in the way instructions are given, for example.
- Changes in training – permitting different kinds or extended training opportunities.
- Use of technology – recording supervisor’s instructions, for example.
- Modifying duties, workspace or location – freeing an employee from distractions.
Whether these accommodations are right for your workplace will depend on the circumstances of the employee and your organization. But it’s clear that dismissing these types of accommodations outright could have significant consequences. Just like accommodation of physical disability, accommodation of mental disability must be assessed in each case.