Authors: Bret Lercher, David Negus, Devin Wehrle, Kristin Gibson, Sarah Carr, Shandra Czarnecki
This blog is part three of a three-part blog series outlining the essential points of an employer’s duty to accommodate employees with mental disabilities.
In our previous blogs, we looked at an employer’s duty to accommodate employees with mental disabilities and understanding the meaning of “mental disability.” This week, we’ll explore an employer’s duty to inquire.
Not all employees will feel comfortable telling their employer that they are dealing with a mental illness, but this doesn’t necessarily absolve an employer from taking no action to address the situation. In cases where an employer suspects that an employee suffers from a mental illness that may be affecting their performance at work, the employer has a duty to inquire.
Your duty to inquire exists only when you know or perceive — or the facts are such that you ought to have known or perceived — that an employee has a mental health disability that is the cause of a workplace issue you are seeking to address.
Indicators of Mental Illness
The list below is not exhaustive, but provides common traits that are possibly indicative of an employee having a mental disability:
- significant departure from previous consistent behaviour
- increased absences or tardiness
- increased poor work performance
- increased frustration or irritation
- increased lack of cooperation
- decreased productivity
- decreased interest or involvement
- complaints of confusion, fatigue or pain
- expressions of paranoia or strange or grandiose ideas
Essentially, you should be looking for an alteration in an employee’s past mood or behaviour that is material enough or has continued for long enough for you to conclude that he isn’t just having a bad day or two.
Many experienced HR professionals will have a good sense of knowing when to suspect an employee suffers from a mental illness—particularly when they are engaged with the employee’s front-line manager or supervisor.
Raising the Issue
If you conclude that an employee may have a mental illness, your obligation is to provide the employee with a meaningful opportunity to identify what they are dealing with and request assistance or accommodation.
There are a number of practical suggestions you can follow in your process:
- raise the issue in the context of work performance;
- be prepared;
- only allow the minimum number of people required to conduct the interview;
- assure confidentiality; and
- advise of the possibility of accommodation, benefits, or an employee assistance program (“EAP”).
It’s important that you raise the issue in the context of the employee’s work performance so they know you are not just prying into a private matter. You should be prepared to identify where an employee’s performance is falling short, and be able to pinpoint some of the specific behaviour that has resulted in you requesting more information. When applicable, if you can mention that the employee’s recent conduct is a departure from their usual good performance, this will send a supportive message to the employee.
It’s also advisable to prepare by re-familiarizing yourself with your organization’s accommodation policies and processes to ensure you’re complying with them. You may even want to present the policy to the employee. You’ll also want to know what resources your organization can offer to support the employee, such as an EAP, sick benefits or counselling, and have this information available for the meeting.
Confidentiality is also essential, and you should advise your employee that information will be requested on a need-to-know basis.
For the meeting itself, two employer representatives should be present — one to do the talking, and the other to serve as a witness and take notes. These representatives should be the same throughout the accommodation process, and they should not be people you believe will make the employee uncomfortable. If you’re in a unionized environment, you should also have a union representative present, unless the employee has waived their right to have a representative at the meeting.
The Canadian Human Rights Commission advises against suggesting you can relate to an employee’s struggles unless you’ve had a similar personal experience. Similarly, you should avoid delivering a “pep talk” where you suggest that the employee can work their way through a disability. You should also avoid offering or asking for a diagnosis of the condition, and avoid asking for the cause of the illness.
When an Employee Refuses to Answer, or Denies There Is a Problem
It’s possible that in offering a good-faith opportunity to an employee to request assistance, you may not be met with cooperation. They may refuse to answer your questions, tell you the matter is none of your business or deny that anything is bothering them.
No matter the employee’s response, you still remain in control of this situation. The employee does not dictate the next steps.
An employee is within their rights to keep their personal health information to themself if you have concerns that are based entirely on off-duty conduct or rumours. But if your concerns are connected to behaviour occurring in the workplace, you may have some difficult decisions to make.
For one, how do you address the misconduct? If you are dealing with an employee’s poor performance, have given them an opportunity to explain it and they have provided no information, you are free to administer discipline, since the employee has done nothing to suggest that their behaviour is non-culpable. In such cases, receiving disciplinary corrective action may open an employee’s eyes and result in them disclosing their illness, if one exists.
A more drastic response to a refusal to cooperate may be appropriate when the employee is in a safety-sensitive position and poses a reasonable safety risk. If this is the case, the removal of the employee on non-disciplinary grounds is not only an option, but may be required in order for you to meet your obligations under workplace safety legislation.
When an Employee Discloses That There Is a Problem
If an employee discloses that he is experiencing a problem, it’s unlikely you’ll be looking at disciplining him at this stage, because that would be discrimination if the misconduct in question results from a disability.
However, the presence of a disability does not automatically exclude the use of discipline. A non-disciplinary approach is required only when a causal connection between the condition and the workplace misconduct is established. When there is no causal connection, the employee cannot rely on their disability to escape punishment.
For example, there are a number of cases where employees have stolen items from the workplace and blamed their misconduct on an addiction. When employees are unable to prove that the addiction caused the misconduct, discipline is an appropriate response. If medical evidence reveals that addiction was a contributing factor in the misconduct — but not the sole cause — a hybrid approach of both disciplinary and accommodation efforts may be appropriate. If the addiction alone compelled the misconduct, a purely accommodation-based approach is required.
Requesting Medical Information
You are unlikely to reach a decision as to whether there is a causal connection between a mental disability and misconduct at your first meeting — nor should you make one. The first step after an employee discloses a need for help is usually to request supporting medical documentation, unless you and the employee and can reach an accommodation agreement that satisfies both parties.
You are entitled to ask for certain medical information, and if the request is reasonable, the employee has an obligation to provide it. But there are limitations on what you can ask for. You are entitled to medical information needed to:
- confirm the existence of a condition and the need to provide accommodation;
- understand the employee’s condition and its restrictions on them; and
- understand what will and will not work for a workplace accommodation.
Requests for a diagnosis, test results, details of prescriptions or medical history should be avoided because they are not necessary to implement a workplace accommodation. In many cases, you do not need to know what a condition is called in order to accommodate it, especially at the outset. But if an accommodation is lengthy and complex, employers will have more leeway in requesting information.
An employee does have an absolute right to keep their confidential medical information private. However, if the individual exercises that right in a way thwarts an employer’s obligations or makes it impossible for an employer to provide appropriate accommodation, the employer is entitled to hold the employee out of the workplace. An employee has no right to accommodation unless they provide sufficient reliable evidence of a disability.
If you have obtained medical information deeming accommodation to be necessary and proposed a suitable accommodation that the employee refuses, discipline is an appropriate response to address the misconduct. If an employee is refusing to report to work as directed and there is no medical reason that the individual cannot do their job, then there is just cause for discipline, up to and including termination.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Join us at the 2019 Manitoba Labour & Employment Law Update for a more in-depth analysis of accommodating physical and mental disabilities in the workplace, and learn the latest developments in labour and employment law.