Mental health and an employer's duty to inquire

Employers have duties to employees arising from occupational health and safety legislation. They must be sensitive to home-based violence when the home becomes the workplace, as well as physical issues arising from non-standard ergonomic configurations. In some instances, they must watch out for deteriorating employee mental health conditions.

Human rights legislation may impose a duty to inquire into employee well-being and accommodate for undue hardship if the employee has a mental or physical disability. There may also be family status considerations that impact an employee’s ability to work the same hours previously worked.

According to Loretta Bouwmeester, the managing partner at the Calgary office of Matthews Dinsdale LLP and chair of the CBA Alberta Law Firm Management (South) section, law firm managers have expressed concern about how their teams are doing and are going above and beyond the obligations of the core employer. “We have managing partners from firms of all sizes attending our section, and CBA managing partners roundtables to share resources and learnings about issues we all face,” she says. “We have strategized about tangible practices that firms can adopt, like regular well-being check-ins with team members. Also, how to make a tough time less so.”

One national firm, BLG, expanded its mental health benefits package to ensure employees and their families had sufficient access to psychological and mental health supports. The firm provides a global well-being program that individual employees can tailor to their own needs, a wellness account, an employee and family assistance program, and educational programs about health and wellness.

BLG committed to support firm leaders in understanding, identifying, and supporting mental health issues by encouraging attendance at the Psychological First Aid program offered by Alberta Lawyers’ Assistance Society.

At JSS Barristers, a litigation boutique in Calgary with 35 lawyers, communication is key. Managing Partner Andrew Wilson regularly communicates with all staff about mental health awareness and activities with JSS’s signature blend of humour and smartness.

As part of Bell Let’s Talk Day on January 28th, Andrew Wilson circulated an excerpt from the Ontario Superior Court ruling in 713949 Ontario Limited v. Hudson’s Bay Company ULC. In it, Justice Frederick Myers finds that while lawyers and the courts are in the service business, there has to be a brake applied to service providers’ willingness to compete themselves (or their juniors) into unhealthy states in the ordinary course of business.

The firm’s “Blue Monday” communication linked lawyers and staff to an internal peer support program, as well as to the Alberta Lawyers’ Assistance Society, which JSS houses in a confidential space. The cool vibe was maintained by a link to New Order’s song “Blue Monday” on YouTube.

At Blakes’ Calgary office, the wellness committee provided seminars and activities to encourage wellness and mental health awareness.  A live virtual talk was hosted across all offices with Dr. Brian Goldman on empathy, kindness and resilience in COVID times. Cognitive behaviour therapy was also provided online through the MindBeacon Therapist Guided Program.

Blakes’ employees can also expense a healthy annual budget for mental health therapy.

Peter Wong, the managing partner at Caron & Partners LLP in Calgary, emphasized the importance of open communication.  He would provide a detailed email to all staff following government announcements.  As a smaller firm, this allowed for quick responses to government changes and the implementation of contingency plans. The firm’s health spending account provides access to well-being care, including mental health needs. Peter noted the impact on morale resulting from a lack of social interaction. In response, the firm is looking to implement webinars with a psychologist and provide web-based workout classes available to all staff. Peter acknowledges the challenge of ensuring employee well-being “remotely”, but found ways to help their employees cope with COVID isolation and come out of the pandemic more positively.

KPMG launched a national well-being portal that houses all of their wellness supports. Mental health supports include articles by their chief mental health officer, a curated list of virtual mental health resources, a mental health benefits package or access to counselling and psychologists, and to resources through a health concierge. The Home Workspace account provides physical challenges and a lifestyle spending account in addition to advice from financial experts. Their Life@Work program supports its vacation purchase program, virtual work resources and workday flexibility programs. KPMG launched a just-in-time ‘pop up’ working parents’ network in early April of 2021 and a working parents resources portal, to help people balance kids at home during the pandemic, including tutoring resources. 

Ensuring that lawyers are healthy mentally and physically may be the right thing to do legally and morally, but it also makes business sense.

According to Loretta Bouwmeester, managing partners know that clients need lawyers, students and staff being to be at their best, which is why it’s important, beyond humanistic reasons, to invest in their well-being. “While Zoom and other similar platforms can wear us out at times, one of my favourite early initiatives was connecting with people more often than we would otherwise have had the opportunity to, and in different ways,” she says. “As the pandemic continues to evolve, our ways of constructively engaging with each other likely will too. Together we are better. Keeping that top of mind and being open to flexibility in terms of how and where work is done is key.”