Multiple studies have shown that in the past year during the pandemic the number of employees suffering from mental health conditions has grown exponentially. Since unions play a crucial role in ensuring that employees are not discriminated against due to their mental health status, we look at how mental health can be accommodated and what role unions play in this process.
When does the duty to accommodate a mental health issue arise?
The Ontario Human Rights Code (“Code”) prescribes only a limited number of cases when the employer must accommodate the needs of an employee. One case is when the employee has a disability.
The test for determining, whether an injury or condition constitutes a disability is whether there is a “loss or limitation of opportunities to take part in the life of the community on an equal level with others”. Normal ailments, such as the flu, typically fall outside of this definition.
Based on this test, the Human Rights Tribunal, as well as the arbitrators have interpreted “disability” quite broadly and have found that, among others, the following mental health conditions constitute a disability:
- Depression, anxiety, panic attacks
- Personality disorders and other mental disorders (e.g. adjustment disorder)
- Migraine headaches
- Sleep disorders
- Extreme sensitivity to noise
- Chronic fatigue (fibromyalgia)
So, if an employee suffers from one of these listed conditions or any other condition that prevents them from performing their work, the employer likely has a duty to accommodate them, i.e. make adjustments to the working conditions of the employee to the point of undue hardship.
What is the process for accommodation?
First, the employer has a procedural duty to inquire about what kind of accommodations might be required. This duty usually arises after the employee reported their disability and requested an accommodation (often requiring medical evidence to support it). However, in some cases the employer might be liable, even when the employee did not request accommodation, but the employer was aware of the employee struggling due to disability.
As mentioned above, the Code provides that the employer must accommodate the employee to the point of “undue hardship”. In other words, the employer cannot terminate the employee, unless it would be an “undue hardship” to keep them.
What constitutes an undue hardship is determined in every case individually, taking into account factors such as cost, outside sources of funding, health and safety requirements, as well as “employee morale and mobility, the interchangeability of facilities, and the prospect of interference with other employees’ rights or of disruption of the collective agreement”, “whether the employee’s job itself exacerbates the disability, costs to the employer of the proposed accommodation including impact on efficiency, wage increases and other direct financial costs to be incurred (e.g. renovations); and the impact on the safety of the individual, other employees or the general public”.
Once all of these factors are taken into account, the employer, usually in consultation with the union, must present a reasonable accommodation. If the employee rejects a reasonable accommodation then the employer’s duty to accommodate will not be breached.
Second, after possible accommodations have been determined, the employer is under a substantive duty to implement the formulated accommodation and adopt the necessary alterations to allow the employee to work to the extent possible.
Examples of accommodations that the employer may provide:
- Adjustment to rules governing attendance or seniority, when employees are more frequently absent from work due to their disability;
- More frequent breaks or more flexible work hours;
- Allowing working from home;
- Counselling services;
- Providing another job, or work in another location or department.
What role do Unions play in the accommodation process?
The Supreme Court of Canada recognized that the “search for an accommodation is a tri-party inquiry,” which includes the employer, union, and employee. Thus, unions play a crucial role in the accommodation process, having both a right and an obligation to participate in this process.
On one hand, unions can be liable for breaching a duty to accommodate, when they become a party to the discrimination. This can happen in two instances:
- First, if there is a rule in a collective agreement that discriminates against an employee. Although such provision will likely be considered void, unions may be found liable, together with the employer, for disability discrimination. To avoid being liable, unions should ensure that the collective agreement prevents any kind of discrimination against employees suffering from mental health issues and affords the level of protection that is, at least, equivalent to the protections under the Code.
- Second, if the union unreasonably disrupts the accommodation process. This translates into the obligation of the union to assess the reasonableness of the accommodation proposals, advanced by the employer. If the accommodation proposal is reasonable, in particular, if it does not disrupt the collective agreement or detrimentally affect the rights of other employees, then the union cannot impede the employers efforts to accommodate.
In addition, unions have a responsibility to “ensure that a [disabled] employee can return to useful employment and must cooperate fully in finding [them] accommodation.”
On the other hand, the employer may violate its duty to accommodate, if it fails to communicate with the union and involve it in the discussion of possible accommodations.
Therefore, the accommodation process has to involve a meaningful conversation between the employer, the union and the employee, aimed at formulating possible solutions to accommodate the employee’s disability and assess the impact of these solutions on the overall workplace.
Please contact us for a personalized assessment of whether your Union could be liable for breaching the duty to accommodate or to help your members obtain accommodation.