Introduction
Employers are required to accommodate employees with disabilities. They must accommodate employees to the point of undue hardship, which can be a high bar to meet.
Accommodation can take the form of alternate work duties and schedules, and taking measures to make a workplace more accessible to employees with disabilities, among other accommodations.
In the accommodation process, both employers and employees have certain duties that they must meet. This article explores those duties by posing the following two questions and then exploring each.
Issues
- What are the parameters of an employee’s duty to assist in the accommodation process, particularly in the context of a mental disability?
- What are the parameters of an employer’s duty to inquire into its employees’ accommodation needs, particularly in the context of a mental disability?
Summary
Summary of Employees’ Duty to Assist in Accommodation
Employees’ duty to assist their employers with accommodating their mental disabilities in the workplace differs slightly from the duty to assist employers in accommodating other protected characteristics.
The primary difference is that employees with mental disabilities may not need to inform their employer about their disabilities, whereas employees with other protected characteristics do need to inform their employer if they require accommodation.
However, employees with mental disabilities must still take reasonable steps to facilitate accommodations their employers propose, and cannot simply reject proposals without suggesting alternatives.
Summary of Employers’ Duty to Inquire about the need for Accommodation
Employers have a duty to inquire further if an employee exhibits behaviour that would lead a reasonable employer to suspect the employee requires accommodation.
In the case of mental disabilities, an employee’s failure to inform the employer of their condition does not shield the employer from its duty to accommodate if the circumstances are such that the employer ought to know that the employee requires accommodation.
Even if an employer did not have a duty to inquire further into an employee’s condition, or if an employee failed to discharge their duty to assist in securing accommodation, it may still be found that the employer was required to accommodate the employee’s disability in some cases.
Discussion
Employees’ Duty to Assist in Securing Accommodation
Employers have a duty to accommodate employees’ disabilities to the point of undue hardship.[1]
If an employee establishes that they suffer from a disability, whether physical or mental, and the employer did not make a reasonable attempt to accommodate the employee, the employer may be liable for damages under human rights legislation.[2]
A finding that an employer disciplined an employee with a disability without making a sufficient attempt to accommodate them may also be grounds to substitute the disciplinary penalty for a lesser measure.[3]
The duty to accommodate does not rest solely on employers. Employees have a duty to assist in securing reasonable accommodation.[4]
Employees do not need to originate the solution themselves. However, if an employer proposes reasonable measures that would fulfill its duty to accommodate, the employee must take reasonable steps to facilitate the implementation of the proposal.[5]
In the mental health context, the duty to assist in finding reasonable accommodation may include seeking assistance under a program that an employer provides if the employer informs the employee of the program’s existence, or seeking counseling if recommended by the employer.[6]
If an employer suggests alternatives such as a leave of absence or transfer to part-time work, and the employee refuses without suggesting alternatives, this may constitute a failure to assist in finding accommodation.[7]
The duty to assist in finding reasonable accommodation typically includes an obligation on the employee to communicate the nature of their disability to their employer.[8]
However, this may not be the case where the employee has a mental disability, especially if the nature of their disability makes it difficult either to communicate their concerns or to understand that the disability is affecting their performance.[9]
Further, the Supreme Court of Canada has recognized the unique stigma and historical disadvantages suffered by individuals with mental disabilities.[10]
Accordingly, even an individual who understands the effect their mental disability has on their performance may be reluctant to disclose the nature of their disability to their employer due to the associated stigma.[11]
Employers’ Duty to Inquire about an Employees Need for Accomodation
Employers also have a duty to inquire into an employee’s condition in certain situations.
Specifically, if an employer has reason to believe that an employee’s medical condition may be negatively affecting their ability to perform their work, the employer must inquire further before taking any action that would adversely affect the employee.[12]
If an employer is aware of an employee exhibiting behaviour that suggests a disability, the employer’s failure to inquire further will not shield it from its duty to accommodate.[13]
The employer’s duty to inquire does not typically relieve employees of their duty to disclose facts relating to a physical disability or other characteristic protected from discrimination under human rights legislation.[14]
However, for the reasons discussed above, an employee with a mental disability failing to disclose their condition to their employer will not absolve the employer of its duty to inquire if there is reason to believe the employee may need accommodation.[15]
Whether an employer has a duty to inquire will always depend on the unique circumstances of the particular case.[16]
The ultimate question is whether the employer ought reasonably to have known that the employee required accommodation.[17]
Some examples of behaviour that may indicate an employee requires accommodation are:
- mood swings, irritability, and crying at work;[18]
- performing tasks slowly, carelessly, or in abnormal ways;[19] and
- memory problems and lack of focus in the workplace.[20]
If an employee tells their employer that they are having difficulties at work due to a mental disorder, or if an employer is aware that an employee is seeking counselling or believes they need counselling, this may contribute to a finding that the employer had a duty to inquire further before taking action that would adversely affect the employee.[21]
However, an employee merely telling their employer that they suffer from depression may not be enough to trigger the employer’s duty to inquire if the employee’s behaviour is not such that the employer ought reasonably to know that the employee may require accommodation.[22]
Further, if an employer asks an employee for information about their disability, and the employee refuses to provide the information, this may satisfy the employer’s duty to inquire.[23]
It is important to note that the inquiry does not necessarily end with a finding that an employee breached their duty to assist in finding reasonable accommodation or that an employer did not have a duty to inquire.
In certain cases, arbitrators have overturned or reduced disciplinary measures for failure to accommodate an employee’s disability even where the employer had no knowledge of the employee’s disability, and the circumstances were not such that the employer ought to have known that the employee required accommodation.[24]
Further, if a terminated grievor’s performance is likely to improve upon return to work, this may favour reinstatement even where the grievor refused their employer’s accommodation proposals.[25]
However, decisions will likely consider whether the employer was unable to provide accommodation. In these cases, reinstatement would likely be without back compensation, or may include a lengthy suspension in place of termination, reducing the amount of lost wages the employer is liable for.[26]
Conclusion
Employers have a duty to accommodate employees to the point of undue hardship.
An employer’s and an employee’s role in the disclosure and accommodation process can differ depending on the circumstances of the disability, and the accommodation process will be fact specific.
If you believe your employer has failed to accommodate a disability, or has discriminated against you on the basis of a protected ground such as race, ethnicity, gender, family status or other ground, you should seek legal counsel.
We’re here to help. Please do not hesitate to call or book an appointment for a free legal consultation.
Bibliography of Authorities
Case Law
Belleville General Hospital v SEIU Local 183, 1993 CarswellOnt 1289, [1993] OLAA No 312 (Arb)
British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868, 181 DLR (4th) 385
Canada Safeway Ltd v UFCW, Local 401, 1992 CarswellAlta 987, 26 LAC (4th) 409 (Arb), aff’d 1995 ABCA 7
Cape Breton (Regional Municipality) and CUPE, Local 993 (B(A)), Re, 2013 CarswellNS 963 (Arb)
Cypress Health Region and SEIU-West (Paczkoski), Re, 2014 CarswellSask 73, 117 CLAS 379 (Arb)
Gibbs v Battlefords & District Co-operative Ltd, [1996] 3 SCR 566, 140 DLR (4th) 1
Jones v Companion, 2002 NFCA 38
Mackenzie v Jace Holdings Ltd, 2012 BCHRT 376
Ottawa (City) v Ottawa-Carleton Public Employees’ Union, Local 503, 2005 CarswellOnt 10460, [2005] OLAA No 502 (Arb)
Pratt v University of Alberta, 2019 AHRC 24
Renaud v Central Okanagan School District No 23, [1992] 2 SCR 970, 71 BCLR (2d) 145
Union of Northern Workers and Government of the Northwest Territories (Richardson), Re, 2019 CarswellNWT 7 (Arb)
Walsh v Universal Distribution, 2020 BCHRT 39
Legislation
Alberta Human Rights Act, RSA 2000, c A-25.5
Secondary Sources
Mort Mitchnick & Brian Etherington,”The Duty to Inquire and Accommodation of Mental Illness” in Leading Cases on Labour Arbitration, 2nd ed (Toronto: Lancaster House, 2018)
[1] Alberta Human Rights Act, RSA 2000, c A-25.5, s 11 [AHRA], British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para 20, 181 DLR (4th) 385.
[2] AHRA, supra note 1, s 7, see Pratt v University of Alberta, 2019 AHRC 24 at paras 157, 162, 166, 178 [Pratt].
[3] Canada Safeway Ltd v UFCW, Local 401, 1992 CarswellAlta 987 at paras 146-147, 26 LAC (4th) 409 (Arb), aff’d 1995 ABCA 7 [Baum].
[4] Renaud v Central Okanagan School District No 23, [1992] 2 SCR 970 at para 50 [Renaud], 71 BCLR (2d) 145.
[5] Ibid at para 51.
[6] Baum, supra note 3 at para 101.
[7] Belleville General Hospital v SEIU Local 183, 1993 CarswellOnt 1289 at para 46, [1993] OLAA No 312 (Arb) [Bellville].
[8] Mackenzie v Jace Holdings Ltd, 2012 BCHRT 376 at para 30 [Mackenzie].
[9] Ibid at para 45, Baum, supra note 3 at paras 104, 106.
[10] Gibbs v Battlefords & District Co-operative Ltd, [1996] 3 SCR 566 at para 31, 140 DLR (4th) 1.
[11] Baum, supra note 3 at para 105.
[12] Mackenzie, supra note 8 at para 36.
[13] Ibid at paras 50-51, Baum, supra note 3 at paras 2-3, Pratt, supra note 2 at para 151.
[14] Union of Northern Workers and Government of the Northwest Territories (Richardson), Re, 2019 CarswellNWT 7 at para 57 (Arb) [Richardson], Renaud, supra note 4 at para 51.
[15] Baum, supra note 3 at paras 105, 107.
[16] Richardson, supra note 13 at para 60.
[17] Mackenzie, supra note 8at para 30, Baum, supra note 3 at para 99, Mort Mitchnick & Brian Etherington,”The Duty to Inquire and Accommodation of Mental Illness” in Leading Cases on Labour Arbitration, 2nd ed (Toronto: Lancaster House, 2018) at 15-49.
[18] Mackenzie, supra note 8at paras 25, 39, see also Pratt, supra note 2at para 138.
[19] Baum, supra note 3at para 14.
[20] Pratt, supra note 2at paras 142, 143, 147, 148, 150.
[21] Ibid at para 150, Baum, supra note 3 at para 99.
[22] Walsh v Universal Distribution, 2020 BCHRT 39 at para 48.
[23] Jones v Companion, 2002 NFCA 38 at para 31.
[24] See Cape Breton (Regional Municipality) and CUPE, Local 993 (B(A)), Re, 2013 CarswellNS 963 at paras 41-43, 71, 73 (Arb) [B(A)], Cypress Health Region and SEIU-West (Paczkoski), Re, 2014 CarswellSask 73 at paras 103, 108, 117 CLAS 379 (Arb) [Paczkoski], Ottawa (City) v Ottawa-Carleton Public Employees’ Union, Local 503, 2005 CarswellOnt 10460 [2005] OLAA No 502 at paras 79-81 (Arb) [Cyr].
[25] See Belleville, supra note 7at paras 46, 62-63.
[26] See Cyr, supra at para 80, Paczkoski, supra note 24at para 115, B(A), supra note 24at para 73, Belleville, supra note 7at para 63.
