Authors: Bret Lercher, David Negus, Devin Wehrle, Kristin Gibson, Sarah Carr, Shandra Czarnecki
This blog is part one of a three-part blog series outlining the essential points of an employer’s duty to accommodate employees with mental disabilities.
Employers have a duty to accommodate employees suffering from mental illnesses. But distinguishing mental illness from ordinary anxiety is no easy matter.
Under human rights legislation, the duty to accommodate is triggered when an employee has a “mental disability.” But what exactly is a mental disability? Just like having a cold doesn’t constitute a physical disability, having a non-physical health condition doesn’t necessarily constitute a mental disability.
The Canadian Human Rights Commission (“CHRC”) defines mental illness as being characterized by “alterations in thinking, mood or behaviour—or some combination thereof—associated with significant distress and impaired functioning.” The range of symptoms can be broad, and differ from person to person.
An employer’s duty is triggered only when an employee’s symptoms rise beyond the normal threshold of ordinary, day-to-day stress or anxiety. But this can be a significant challenge for employers, as there is often no way to quantify the symptoms.
Courts and administrative tribunals take a flexible and expansive approach to determining whether any non-physical condition warrants the protection of human rights legislation. Consequently, before deciding whether an employee’s condition requires accommodation, employers should gather as much information as possible, including opinions from doctors, about the symptoms an employee is experiencing and the effect they have on the employee.
The cases below provide useful insight on what has—and hasn’t—been considered a mental disability by arbitrators.
University of Western Ontario v. University of Western Ontario Staff Association, 2008 CanLII 16058 (ON LA)
This case centres on a lab assistant represented by the University of Western Ontario Faculty Association who had to perform experiments on lab animals. The experiments, which he was morally opposed to, caused him to develop stress and anxiety to the point where he was irritable, nauseous and experienced insomnia. He eventually stopped reporting to work.
The grievor’s doctor was unable to conclude that the grievor suffered from a recognized disability. But the fact that he experienced these symptoms and that the symptoms were debilitating was not contested by the employer. Rather, the employer took the position that there was no disability to accommodate, and that this was merely a case of an employee with an aversion to performing lab experiments.
The union representing the employee filed a grievance alleging that the university had failed to accommodate the grievor’s mental disability. The matter went to a hearing for the sole purpose of determining whether the grievor had a disability as defined by the Human Rights Code Ontario (the “Code”.
Supported by evidence from the grievor’s doctor, the union argued that the employee was suffering from an unknown psychological impairment, and that the reason for his absence from work was anxiety relating to his workplace situation. The doctor testified that the grievor was suffering from extreme anxiety to the point of nausea and insomnia, and that he could no longer function at work, which led to him voluntarily leaving his job. The doctor also noted that the grievor did not want psychological counselling because he was fine when he was not working.
The union argued that, given the purpose of human rights legislation, determining whether or not there was a disability should focus on the effects of the medical condition, not on the biomedical explanation for it (or the absence thereof).
Interestingly, the employer did not call any medical evidence, or even choose to cross-examine the doctor that was called by the union. Instead, the employer drew a distinction between symptoms and disability, arguing that the presence of symptoms was not sufficient to determine that an employee had a disability.
In the employer’s submission, there was no evidence the grievor suffered from a disability within the Code; rather, the grievor only suffered from an internal conflict between his duties and his own morals, which did not warrant the protection of the Code, even if it resulted in physical side effects that prevented the employee from attending work.
The arbitrator sided with the union, reasoning that a multi-dimensional approach that considered all the surrounding factors and the impact on the employee was preferred over a strict biomedical approach that hinged on whether the doctor could label the condition.
The arbitrator also noted that even though the employee had personal objections to what he had to do in the course of his job that may have contributed to his disability, it was not his personal beliefs per se that resulted in his inability to attend work, but his debilitating medical condition—namely, stress and anxiety.
This case concerns a property standards officer (“PSO”) employed by the City of Brampton.
The city wanted its PSOs to be more recognizable to the public, so council passed a resolution directing them to drive Smart Cars and wear uniforms while carrying out their duties. A group of officers vocally opposed this idea from its inception. They wanted to continue using their own vehicles and collecting a mileage allowance.
The officer in this case claimed that upon seeing the Smart Car he’d been assigned, he had a panic attack. He told the city he could not drive the Smart Car for medical reasons and requested an accommodation in the form of being permitted to use his own car, as he always had.
The city was suspicious of this claim and requested a medical note, which was provided. The note indicated that the grievor had anxiety related to having to drive the Smart Car. The grievor also had a one-hour consultation with a psychologist, who concluded that the grievor suffered from motor vehicle anxiety. The psychologist said that no treatment was required because this was “normal anxiety.”
The city did not accept the grievor’s assertion that he could not drive the Smart Car, and requested that the grievor participate in an independent medical evaluation, which the grievor refused to do. Consequently, the city did not allow the requested accommodation on the basis that the medical information it had received did not support the claim that the grievor had a disability requiring accommodation.
The union grieved that city’s failure to provide the requested accommodation was discrimination contrary to the Code and an arbitration hearing was held. One of the questions at arbitration was whether the officer had a disability within the meaning of the Code.
The union argued that the medical note provided by the grievor proved the grievor’s disability, since it clearly stated that he was experiencing anxiety.
The city did not say that the grievor was misrepresenting his anxiety, but instead argued that the grievor was experiencing symptoms of normal anxiety, which could be alleviated by being acclimatized to the Smart Car. The city had offered to help the grievor gradually get used to the vehicle until he felt comfortable performing his duties. The city also called their own expert witness on anxiety, who challenged the foundation of the doctors that testified in support of the grievor.
In this case, the arbitrator sided with the employer. He did not dispute that the grievor had anxiety or suffered from a panic attack, but came to the conclusion that the anxiety and panic attack were not the result of a disability. The arbitrator also noted that he had no problem concluding that an anxiety disorder, if properly established, constituted a disability, but based on the facts before him, he found there was no foundation for such a claim.
Key Takeaways for Employers
The distinction between these two cases is not the presence of symptoms or the ability to put a diagnosis on the condition, but the degree of impact on the employee.
In one case, you have an employee who is incapacitated from attending work; in the other, you have an employee who is merely experiencing normal levels of anxiety about a workplace situation.
The employer in the Smart Car case handled things well:
- it attempted to get medical information from a number of avenues;
- it suggested a process by which the employee could become acclimatized to the vehicle; and
- it engaged in a dialogue with the employee to try to determine the extent of the symptoms and all the surrounding circumstances prior to making a decision on disability.
It is important for employers to consider all the above points before taking the position that an employee’s symptoms do not constitute a disability.
Next week, we’ll explain the accommodation process and look at how far an employer must go in its accommodation efforts.
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.