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Ontario Employer Advisor Keeping Employers Advised on Developments in Labour and Employment Law

Mental Health Matters

Posted in Accommodation, Mental Health, Occupational Health and Safety, Policies

Today is Bell Let’s Talk Day which serves as a great reminder about the importance of promoting discussion and dialogue around mental health. For employers, there are various challenges associated with addressing mental health which includes the identification, accommodation and organizational approach to the issue. To help combat the stigma and negative perceptions around mental health, today is a good opportunity to focus attention on the legal framework, accommodation process and best practices surrounding mental health in the workplace.

Mental Health in the Workplace

Under the Ontario Human Rights Code, employees are protected against discrimination based on a variety of grounds which include issues relating to mental health; when a mental health issue prevents an employee from performing core aspects of his/her job, employers are required to accommodate to the point of undue hardship. The duty to accommodate can be triggered in two ways: (1) when an employee discloses an issue or (2) when the employer ought to have known about it. When looking at these two triggers, the bigger challenge for employers is determining when they ought to know of a duty to accommodate, especially because mental health issues are often invisible. There are however some general indicators that may help identify a mental health issue:

  • Increased absenteeism
  •  Significant decline or changes in performance
  • Decreased level of engagement
  • Behaviour that is out of character (easily agitated or confrontational)

While this list is by no means exhaustive, it is important to emphasize to managers at all levels of the organization the various signs and signals that can help with the early identification of a mental health issue.

Strategies to Manage Accommodation

With any accommodation, but especially given the sensitivity around mental health, challenges often arise in determining what information to request from the employee and the types of accommodation solutions to consider.

What Can I Ask For?

In order to begin the process of accommodation, it may be necessary to obtain information including: the nature of the illness / disability (short of diagnosis), whether it is temporary or permanent in nature, any restrictions / limitations and the duration of time they are anticipated to be in place. While there is certainly a high degree of sensitivity around requesting this type of information, it is the employer’s onus to identify information it considers reasonably relevant to properly assess accommodation options. This is also crucial in order to meet the procedural and substantive components of the duty to accommodate.

How to Accommodate Mental Health?

When considering accommodations for mental health issues, it is important to address more than modifications that can be made to a workspace or piece of equipment, as it is typically not a physical limitation preventing an individual from performing the work. Instead, the focus should be on the specific job duties and ways to change the mindset or approach to these tasks and how they are performed. Examples of accommodation specifically related to mental health include the following:

  • Setting measurable goals and expectations
  • Clear distinction between high and low priority tasks to reduce time pressures
  • Alternative forms of communication (more frequent meetings, tasks delivered in writing)
  • Retraining
  • Flexible work hours
  • More frequent breaks

Other Considerations

What about discipline? Employers have the right to manage the workplace which includes discipline. While the presence of a mental health issue may be considered a mitigating factor when determining the appropriate level of discipline in a given situation, it does not automatically justify behaviour that would typically be dealt with through discipline or the performance management process.

Develop a mental health strategy. Find a champion within the organization to help set the tone and culture around the issue and consider the following strategies to engage employees and promote a mentally healthy workplace:

  • Provide regular communication about resources available to employees to seek additional support (Employee Assistance Program, human resources representatives).
  • Equip managers at all levels of the organization to recognize indicators that may signal a mental health issue and provide training on how to approach these situations.
  • Plan organization-wide initiatives to engage the workforce and promote discussion about various aspects of mental health which may include lunch hour sessions and team talks.