September 25, 2014
The Ontario Human Rights Commission (the "OHRC") launched its new “Policy on preventing discrimination based on mental health disabilities and addictions” (the "Policy") on June 18, 2014. The Policy is intended to provide practical advice regarding the legal rights and responsibilities set out in the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") as they pertain to mental health disabilities and addictions. The Policy primarily emphasizes that employees with mental health disabilities should be treated in essentially the same way as those with physical disabilities.
OHRC Policies such as this one are intended to provide guidance on interpreting the Code. They are not binding on the Human Rights Tribunal of Ontario (the "HRTO") or Ontario Courts, but both the HRTO and Courts historically defer to OHRC Policies. Accordingly, employers should be familiar with the Policy.
The Policy complements other legislation aimed at reducing barriers for people with disabilities, such as the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (the "AODA"). For more information on the AODA, see our Snapshots titled “AODA Update – What’s Next for Ontario Employers” and “AODA Update – Compliance deadlines approach for the Integrated Accessibility Standards.”
The Policy notes that the following impairments have been recognized under the Code as mental health or addiction disabilities: anxiety, panic attacks, depression, schizophrenia, alcohol dependence and addictions to illegal drugs. The OHRC explicitly states that this list is not comprehensive.
The Policy reiterates the familiar principle that employers have a duty to accommodate employees with disabilities to the point of undue hardship. The OHRC’s position is that the duty to accommodate is the same for mental health disabilities and addictions as it is for physical disabilities. Employers have an obligation under the Code not only to accommodate employees, but also to follow the correct procedures in determining that accommodation. The Policy sets out three main principles of accommodation:
- Respect for dignity: Employers should accommodate those with disabilities in the way that most respects their dignity. For example, if an employee privately asks her manager for flexible work hours on a weekly basis to attend therapy, the manager should take the request in good faith, and should keep the information confidential.
- Individualization: Employers must accommodate each employee based on his or her unique needs; employers should not have a blanket response to deal with all requests for accommodation.
- Integration and full participation: Accommodations should be developed with the intention that accommodation will allow the employee to fully integrate and participate in the workplace. For example, an employee with anxiety who generally works in a cubicle near other employees might require access to a private room in which to work when necessary, yet the employer should also allow that employee to sit in the cubicle with co-workers when he or she feels comfortable.
The Policy states that employers must select the accommodation that is most appropriate. If there are two or more methods of accommodation that are equally appropriate, an employer may select the method that is least expensive or least disruptive to the workplace; the employee does not have the right to his or her preferred accommodation.
Under the Policy, employees have a responsibility to co-operate with the employer throughout the accommodation process. The responsibilities of the employer include: accepting the person’s request for accommodation in good faith; keeping a record of the accommodation request and action taken; maintaining confidentiality and requesting only the information necessary to appropriately respond to the accommodation request. See our Snapshot titled “Seeking medical information to support an accommodation claim does not violate an employee’s privacy” for more information.
Employers also have a duty to inquire into employees’ potential accommodation needs. Practically, this means that if an employee’s behavior noticeably changes, the employer may have a duty under the Code to inquire whether the employee has a need for accommodation.
Employers have a duty to accommodate to the point of undue hardship. The test for undue hardship is the same for mental health disabilities as it is for physical disabilities. Following the Code, only three factors can be considered in assessing undue hardship: cost; outside sources of funding (if any); and health and safety requirements (if any). The Policy notes that employers may not consider factors such as business convenience, employee morale or client preferences in evaluating whether an accommodation constitutes undue hardship.
Costs will only amount to undue hardship if they are quantifiable, can be shown to be related to the accommodation and are “so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.” For example, if a factory worker is unable to concentrate due to the noise of machines, the employer likely would not be ordered to replace the machines with new, quieter models at significant cost.
Despite the OHRC’s position that only undue hardship can relieve employers from the duty to accommodate, the HRTO has granted relief for other reasons, including where no accommodation is available that allows the employee to fulfill the essential requirements of the job and where an employee does not participate in the accommodation process.
Employers should be reassured that this Policy does not reflect any drastic changes in the OHRC’s approach to discrimination on the basis of disability. Employers must continue to accommodate employees with real or perceived mental health disabilities or addictions in exactly the same way that they must accommodate those with physical disabilities.
- See more at: http://www.somlaw.ca/Discrimination_mental_health#sthash.Tf9cORmq.dpuf