By Jennifer Lynch, QC*

When it comes to mental illness and problem substance use in the workplace, employers and employees have both rights and responsibilities. The Canadian Human Rights Act (the Act) prohibits discrimination in employment on a number of grounds, including disability. The Act considers both mental illness and drug and alcohol dependence as disabilities.

The Canadian Human Rights Act applies to workplaces under federal jurisdiction. These include federal departments, agencies and Crown corporations; chartered banks; airlines; interprovincial communications and telephone companies; interprovincial transportation companies; and First Nations, among others. The provinces and territories have similar laws about discrimination that apply in their jurisdictions. The BC Human Rights Code is available at www.bchrt.gov.bc.ca.

Under the Act, employers have two main responsibilities toward employees and people who apply for employment. First, employers must not discriminate on the basis of a disability or a perceived disability. Employers must make it clear that harassment in the workplace will not be tolerated. Harassment must be investigated and corrected as soon as employers become aware of it. Every effort must be made to eradicate stigma and discrimination, because they can make a person’s experience of, and recovery from, mental illness or addiction more difficult. Stigma and discrimination can also affect a person long after the symptoms of their illness are gone.

Second, the Act requires that employers do everything they can to accommodate an employee with a disability. Just as someone with a physical disability might need physical aids or structural changes in the workplace, someone with a mental illness might need social or organizational accommodations.
Working together with mutual respect ?the employer, employee and union all have a responsibility to work together to choose appropriate accommodations on a case-by-case basis. These accommodations can be as simple as flexible scheduling or modifying duties slightly; they might be temporary, periodic or longer term.

Many employees will know what accommodation they need. Some employees, however, may not take the right steps to get treatment or accommodation. This can be because they haven’t come to terms with their illness. Sometimes the very nature of a disability makes it hard for people to deal with it. Some employees might be afraid of a negative reaction.

Employers are not expected to diagnose mental illness or addictions, but managers and supervisors should be aware of changes in employee behaviour and workplace performance. In some cases, managers/supervisors may need to speak with an employee privately to assess whether mental illness or addiction may be a factor in a workplace performance issue. If mental illness or addiction is suspected, the manager/supervisor must support the employee in seeking help and/or putting in a request for accommodation.

An employee seeking accommodation must provide enough information so that the employer can understand the accommodation needed. The employer needs to know how the employee’s condition affects their work. The employee does not have to disclose information about the diagnosis, the history of the illness or its treatment.

It’s also okay for an employer to ask an employee or applicant to provide supporting documentation from a health care provider. This is so the employer can come up with the best accommodation options.

If an employee is uncomfortable sharing this information with his or her supervisor, it may be useful to involve a third party. A third party could be a member of the human resources (HR) division. The HR person can gather the information and recommend accommodations to the supervisor.

Some important points to keep in mind about information shared/asked for:

• Only information relevant to the work situation needs to be shared—the point is to support the employee with appropriate accommodation
• Medical information shared between the employee and employer is private and must be kept confidential
• Every person is different, so accommodation requests should be considered on a case-by-case basis

Once accommodation has been provided, an employee has a responsibility to meet all essential job requirements and standards of their position or modified position. They must continue to work with their manager or supervisor to make sure that the accommodation remains effective.

Limits on duty to accommodate ?There are some limits on the employer’s duty to accommodate. If an employee or applicant repeatedly refuses to acknowledge or deal with their mental illness or substance abuse, the employer’s duty to accommodate may be set aside.

The employer can also refuse to accommodate if providing accommodation would result in undue hardship for the organization. Health, safety and cost are factors to consider.

To prove undue hardship, an employer must show that it got information about the abilities of the employee and about the disability, and that all possible accommodations were explored. Regarding safety, it’s not enough to speak of vague health and safety concerns; the employer must determine whose health and safety is at risk and how high the risk is. And, the cost of providing accommodation would have to greatly affect the viability of the organization to be considered undue hardship.

Resources

• Policy and Procedures on the Accommodation of Mental Illness
• Duty to Accommodate—Frequently Asked Questions

Jennifer Lynch is the Chief Commissioner of the Canadian Human Rights Commission and Chair of the International Coordinating Committee of National Human Rights Institutions.

* This article originally appeared in the ‘Workplaces’ issue of Visions: BC’s Mental Health and Addictions Journal, 2009, Vol 5, No 3, pp. 9,10. Reproduced with permission of the authors and the BC Partners for Mental Health and Addictions Information.