On September 13, 2012, the Ontario Human Rights Commission released “Minds that Matter: Report on the consultation on human rights, mental health and addictions”. The Report compiled the findings of a province-wide consultation on human rights issues experienced by persons with mental health and/or addiction disabilities. As set out in the Report, mental health disabilities can include depression and anxiety disorders, schizophrenia and bipolar disorder. Addictions can include alcohol and drug addiction as well as problem gambling. The purpose of this communiqué is to provide an overview of the key findings and recommendations set out in the Report.
The Commission received over 1,500 responses to the consultation from individuals and organizations across the province. Employers and employees both expressed a high degree of discomfort in talking about mental health disabilities in the workplace. Many respondents stated that a lack of dialogue about mental health issues in the workplace contributed to an unwelcoming environment. Many employee respondents noted their belief that people with mental health disabilities were perceived in a negative light by their employers and fellow co-workers.
The Report also noted that many employers are still unaware of their responsibilities under the Ontario Human Rights Code (“Code”) to uphold the human rights of people with mental health disabilities and addictions. Employers were reminded of their legal obligation to accommodate employees with mental health or addiction disabilities to the point of undue hardship. According to the Report, some of the types of accommodations required by employees with mental health or addiction disabilities (depending on individual circumstances) may include the following:
- Flexible working hours;
- Longer training periods;
- Supports such as job coaching;
- Adjustments to the way information is communicated;
- Short or long term leaves of absence;
- Job sharing arrangements; andModified production standards.
People with mental health or addiction disabilities may exhibit behaviours linked to their disability that affect their performance at work. Employers reported that these situations can be difficult to manage, even where accommodation procedures exist. Consequently, problems in the workplace may build to a crisis before the needs of employees with mental disabilities or addictions are met. Employers have a duty to inquire and offer accommodation if they suspect that workplace misconduct may be related to a disability. This duty is highlighted in cases of mental health or addiction where employees may be unwilling to disclose their disability due a fear of being stigmatized.
Employers are entitled to have productive employees and to develop workplace targets and standards that assist in meeting their organizational objectives. Employers may face challenges in balancing the rights of employees with mental health or addiction disabilities with the rights or needs of other employees. However, employers must be cognizant of their legal obligation under the Code to accommodate disabled employees.
Accommodation efforts that lead to some inconvenience or hardship will not alleviate the employer’s obligation. Only once an employer’s accommodation efforts have reached the point of undue hardship will an employer be relieved of its accommodation duties under the Code. What constitutes undue hardship will be assessed on a case-by-case basis.
Employers are encouraged to consult their Miller Thomson labour and employment lawyer if they have any questions concerning whether their organization’s accommodation efforts have reached the point of undue hardship.