Creating a mentally healthy workplace

COVID-19 has brought to the forefront the need for employers to prioritize wellness and mental health in the workplace – both to ensure workplace safety and promote productivity and job satisfaction. Under human rights legislation, employers must also accommodate mental disabilities. While not intended to provide an exhaustive review, employers should bear in mind the following factors when dealing with mental health issues in the workplace, whether brought on by the pandemic or otherwise:  

Understand the employer’s role 

Under human rights laws, employers have a legal duty not to discriminate based on mental disability and to accommodate that disability. Under occupational health and safety laws, they must also provide a physically and psychologically “safe” workplace. The employer thus has an essential role in creating a mentally healthy work environment.  

Create a mentally healthy workplace culture 

The duty to accommodate is triggered when the employer knows of the employee’s accommodation need. However, an employees’ reluctance to share mental health challenges or information for fear of stigmatization, denial, or privacy concerns, complicates matters. Knowing about the issues allows the employer to manage them and the workplace for the benefit of all. Employees are more likely to come forward when they perceive the employer is open. Here are some ways employers can create a mentally healthy workplace culture: 

• Implement an accommodation policy that sets the tone by acknowledging the employer’s and employees’ role in accommodation, clarifying unacceptable behaviours, encouraging employees to seek assistance, and giving them a sense of the process. 
• Participate in workplace mental health initiatives, such as the annual CMHA Mental Health Week and Bell Let’s Talk.  
• Accept employee accommodation requests in good faith, and avoid stigma, stereotypes, and assumptions about mental health. 

Be alert to mental illness signs 

The duty to accommodate is also triggered when the employer “ought to have known” of the employee’s accommodation need. The employer has a “duty to inquire” when it has information or the circumstances are such that it ought reasonably to have known of a disability for which an employee might require accommodation. There can be signs that poor job performance is so unusual that the employer should have inquired about circumstances requiring accommodation. It’s therefore prudent to train managers and supervisors to be alert to mental illness symptoms or indicators, such as frequent (and perhaps unexplained) absences or displays of other unusual behaviours.   

Gather the medical information

The duty to accommodate a disability is based on reliable evidence, not mere assertion, that the employee has a disability preventing them from performing their normal tasks. To trigger the duty, the employee must demonstrate, generally with medical evidence, the existence of a “disability,” the limitations it imposes and the relationship between the disability and the particular accommodation sought. 

Generally, employers can request, and employees must share, necessary medical information (provided the request is limited to what’s needed). That includes the general nature of the illness and how it manifests as a disability, whether it is permanent or temporary and the anticipated timeframe for improvement, the limitations flowing from the disability, particularly in relation to the employee’s duties, the basis for the medical conclusion and the treatment and medications that might impact the employee’s ability to perform their job. The employer might require a second medical opinion or additional medical information, but only if it’s reasonable and justifiable in the circumstances. However, mental health treatment is often complex, and obtaining this medical information can take time. Patience is required. 

The employer must maintain the confidentiality of this medical information, sharing it only with those who need to know, including those involved in accommodation efforts. 

Be creative, thorough and genuine  

Once the employer’s duty to accommodate is triggered, it must identify and evaluate its options and implement a solution. Or it must demonstrate that the differential treatment resulting from the disability is justified as a “bona fide occupational requirement” and the employer can’t accommodate the employee without undue hardship, or has accommodated them to the point of undue hardship. 

Accommodation options are fact-specific, but there are often many possibilities. The employer should be creative when identifying options and thoroughly and genuinely consider the pros and cons at each step, using specific criteria and documenting the process. The “undue hardship” bar is high. The factors relevant to quantifying hardship include financial cost, disruption of a collective agreement, the morale of other employees, the interchangeability of the workforce, the adaptability of facilities, and any safety risks and who bears them.