It’s a juggling act between human rights, health & safety, business interests
Just like a physical illness or disability, employers have an obligation to accommodate mental illness. But managing and accommodating a mental illness is often a much more complex and sensitive affair.
Accommodation must walk a fine line between the rights of the individual who may be suffering from a mental illness, and the overall safety of the work environment for themselves and others.
The best approach is to appreciate what you don’t know and defer to the judgment of qualified medical and legal experts.
An employer must balance its obligations under the following pieces of legislation:
- The obligation to take all reasonable precautions to protect employees’ health and safety under the Occupational Health and Safety Act (OHSA)
- The obligation to protect all employees from workplace violence and harassment under the amendments to the Occupational Health and Safety Act introduced in 2010 through Bill 168
- The obligation to accommodate mental health disabilities under the Human Rights Code
It’s as tempting as it is risky to act on the basis of perceptions. Remember, you’re not a doctor. Even if you are, you’re likely not your employee’s doctor.
The Agropur & Teamsters case: Ensuring workplace safety
Take, for example, the 2012 case in which an employee at a dairy plant with the Natrel Division of Agropur was diagnosed with severe mental health conditions.
After nine years of service, the employee began having serious difficulties due to a past traumatic event. His problems included post-traumatic stress disorder, impulse control disorder and attention deficit hyperactivity disorder.
Despite months of treatment, the employee’s behaviour became erratic. He made statements that were considered threatening to both his manager and an HR representative.
Following a year long absence and based on assessments by the employee’s healthcare team, Agropur decided it was too much of a safety risk for the employee to return to work in the fast-paced and stressful environment of a mechanized production plant; his employment was terminated
The union challenged this under the Human Rights Code, on the grounds that the employee was making improvement with appropriate medical care. At arbitration, Agropur successfully defended its decision under Bill 168 and the OHSA.
Agropur was, however, ordered to return the employee to employment status for the sole purpose of allowing him to qualify for long-term disability benefits.
The Bell Canada & Unifor case: Failure to justify criminal acts
In this case, an employee was stealing from pay phone coin boxes and made a premeditated effort over a 24-month period to cover up his actions and to lay the blame on a co-worker. This employee had been with Bell for 30 years and had a clean disciplinary record.
In his defence, it was argued that his behaviour was a result of post-traumatic stress disorder and depression. He had seen a stranger commit suicide by jumping off a bridge.
The arbirator hearing the case ruled that, while the employee’s condition did to some extent mitigate his culpability, his actions had not been shown to be directly linked to his illnesses. Bell was justified in its decision to terminate employment on the grounds that it had a right to protect its business interests. It all came down to the trustworthiness of the employee.
Again, determinations about the employee’s mental illness and how it did, or did not, prompt his actions, was based on the testimony of qualified medical professionals.
The arbitrator followed the example set in the Agropur case and ordered Bell Canada to reinstate the employee for the sole purpose of allowing him to qualify for disability benefits.
Act with compassion, an open mind
Regardless of the circumstances, an employer’s best approach in dealing with employees with mental illness is to act with kindness, openness and understanding. Care must be taken to avoid snap judgments, or accommodations that end up leaving an employee isolated or singled out in a discriminatory manner.
An employer’s obligations related to mental illness in the workplace, and even stress-related health issues, have changed a lot in the past 10 or 20 years. Recognize what you don’t know, act with caution, and consult with qualified medical and legal experts before taking action.
For more information, visit Emond Harnden at www.ehlaw.ca