"We have to begin by looking at the definition of 'disability'"
Mental health and wellbeing have taken a hit over the past 12 months, with more and more employees reporting feeling stressed, depressed, and overwhelmed. As such, employers may have been on the receiving end of more accommodation requests– particularly in regards to mental health. HRD spoke with Matthew L.O. Certosimo, partner at Borden Ladner Gervais LLP, who explained the importance of complying with your duty to accommodate and the consequences of failing to do so.
“We have to begin by looking at the definition of ‘disability’,” explained Certosimo. “If we're talking about a mental health condition that meets that definition, for the purposes of a human rights analysis, then employers have a duty to accommodate up to the point of undue hardship – and undue hardship is a high hurdle. On the other hand, the employee has a duty to cooperate with reasonable efforts to accommodate. That's the beginning point - but it’s often harder to identify and determine how best to accommodate a mental health disability.”
There’s a range of possibilities informed by the medical professionals involved. It could be changes in work schedule, it could be time off, it could be a change in reporting structure, and it could be a change in job duties – employers need to determine if the cause of the employee's mental health difficulties or the trigger of those difficulties has something to do with the workplace and the employee should assess to what extent it comes down to their own actions. All of which are taken into consideration by human rights tribunals and the courts.
“The beginning point in any accommodation matter is the analysis of the problem and the related process,” added Certosimo. “Our Supreme Court, in the leading case, placed a great deal of emphasis on the accommodation process, not discounting options and considering all of the factors, before determining what is and what isn't possible in order to accommodate a particular employee to the point of undue hardship.”
“The consequences of failing to fulfil your duty to accommodate as an employer range from the reinstatement of a terminated employee, to damages, to having to post a public policy statement in the workplace, to training employees - there's a whole range of remedies that that could be imposed upon an employer. For an employee, failing to fulfil their duty to cooperate could result in relieving the employer of their duty to accommodate. And, cooperation may mean having to accept ‘reasonable’ accommodation, as opposed to holding out for what the employee views as the ‘perfect’ accommodation.”
