A short guide to disclosure and accommodation
Reprinted from the "Workplace: Disclosure and Accommodations" issue of Visions Journal, 2018, 13 (4), p. 5
In my work with employers and employees, I am often asked to give advice to people who are either experiencing mental health problems, or, more often, trying to support employees with mental health problems.
The disclosure minefield
The employee’s perspective
From the employee’s perspective, navigating the workplace with a mental health problem can feel like one is tiptoeing through a minefield of decisions. The consequences for one wrong step may appear disastrous. One of the potential landmines employees face is when, if ever, to disclose a mental health problem to an employer. Because of the pervasiveness of stigma, the prospect of disclosing to an employer can be frightening: What is the best time to disclose? What do I say? What if they think I can’t do my work? Will people treat me differently? Will I lose my job?
It is no surprise that many employees choose to avoid disclosure altogether by keeping their mental health problems private.
There are times, however, when an employee may feel that full or partial disclosure is the best option. In my experience, this circumstance often occurs when the employer has started to question the employee’s performance. Sometimes, performance issues are related to the cognitive symptoms of an undiagnosed, untreated or recurring mental health problem of which the employer is unaware. Lacking information, the employer may mistakenly conclude that the performance issues reflect lack of commitment, lack of ability or bad attitude.
An employer may think this conclusion is further justified if the employee then takes a medical leave shortly after the performance review. The employer may not realize that the employee may have been struggling with a mental health problem in silence, and that the performance review was the catalyst that triggered the employee’s decision to seek help.
The employer’s perspective
When the employer finally addresses performance issues with the employee, the issue of disclosure can have legal implications. Many people are not aware that an employer has a legal “duty to inquire” about the employee’s health prior to imposing any discipline if he or she knows, or reasonably suspects, that a mental health problem may be impacting an employee’s performance. In these cases, the employer must make inquiries before disciplining the employee or letting the employee go. Typically, these inquiries will involve seeking medical information to determine whether the performance concerns are related to the suspected or known mental health problem.
It is at this point that the employer enters another minefield—that of employee privacy: How do I talk to my employee about this? What questions am I allowed to ask? Can I ask for a diagnosis? What do I do if the employee denies there is a problem?
Privacy and the duty to inquire
At this point, employees may receive a letter from the employer seeking information about their medical condition from their doctor. The employee may feel that this sort of request is harassing or an invasion of privacy. But the employer may actually be trying to meet their duty to inquire.
While employees are not obligated to provide medical information to their employer, if the request for medical information is reasonable and intended to fulfill the employer’s duty to inquire, there could be employment-related consequences for not disclosing. Whether the request is reasonable can be a point of disagreement between the employer and employee, and that issue may ultimately be decided by a member of the Human Rights Tribunal (the “Tribunal”), which adjudicates complaints of alleged discrimination in employment. If the Tribunal finds that the request was reasonable, the employee is expected to participate as part of the employee’s “duty to accommodate,”1 which is set out in more detail below.
Employers are not entitled to know everything about an employee’s medical condition, nor are they entitled to know the employee’s diagnosis. An employee may decide, however, that certain trusted people at work should know and be educated about their health problem, including a mental health challenge or an addiction, in order to be able to receive better support.
The medical information the employer receives from the employee’s treating physician often includes a statement about whether or not the employee has a disability and what limits or restrictions in meeting the employee’s work duties are caused by the disability. It may identify certain accommodations that might be made in the workplace to support the employee, such as flexible work hours or a temporary reduction in workload. Employers use this information to assess whether they can meet another legal obligation: the duty to accommodate the employee’s disability in the workplace.
In meeting this duty to accommodate, an employer may need to seek more information from the employee. An employer cannot take a one-size-fits-all approach to accommodation. Accommodation has to be based on the employee’s specific needs and circumstances.
The rights and responsibilities of accommodation
An employer is not obligated to accommodate an employee’s mental health disability if it can demonstrate that its conduct was justified or that it could not accommodate the employee’s mental health disability without incurring “undue hardship.”1 Employers are expected to endure some inconvenience, disruption and cost in accommodating disabled employees, as long as the hardship is not excessive or undue.
Determining undue hardship is also not a one-size-fits-all assessment. An employer should consider factors such as cost, health and safety concerns, size and flexibility of the workforce and employee morale. Small employers with only a few staff may have much more difficulty accommodating mental health disabilities, particularly if they involve lengthy unplanned absences, whereas a larger employer may have greater flexibility.
The accommodation process requires everyone to meet their obligations in good faith. Employees also have obligations in the accommodation process. One of these obligations is to participate. Participation may include providing the employer with up-to-date medical information, following reasonable treatment recommendations, or accepting a reasonable accommodation that the employer has offered, even if the accommodation is not what the employee had requested or what the employee prefers.
Employees who insist on a “perfect” accommodation, and who are viewed as not meeting their duty to participate, may forfeit the right to any accommodation at all. The question of whether employees are meeting their duty to participate may ultimately be decided by a member of the Tribunal.
In unionized workplaces, unions also have an obligation to facilitate the accommodation process, which may include making changes to the collective agreement if necessary, and if those changes can be made without undue hardship. Unions who reject an imperfect but reasonable accommodation may find that this results in the employee forfeiting the right to any accommodation.
Accommodating an employee’s mental health issues can lead to another minefield—the unintended impact on the morale of other staff, who may believe that the employee is getting special or preferential treatment and feel resentful. Often, this misperception can be changed with education. No one is likely to suggest that an employee in a wheelchair is getting special treatment if the employer installs a ramp to access the front door. And no one is likely to suggest that voice-activated software for a blind employee is special treatment. These accommodations are made so that employees are able to do the job they were hired to do. Similarly, people with mental health challenges sometimes need accommodations to be able to contribute to the workplace and do the job they were hired to do.
Resources and supports
As more and more employers embrace diversity in the workplace, and stigma becomes a thing of the past, people with mental health challenges may find that disclosure becomes less of a minefield. People with mental health issues often have unique perspectives and skills that can bring great value to the workplace. I am optimistic that there will come a day soon when the decision to disclose a mental health issue is as commonplace as letting an employer know about other physical disabilities, illnesses or injuries.
Accommodations for mental health issues can be very complex. This summary provides just a glimpse into the potential minefields employers and employees may have to navigate. As a lawyer, I always recommend seeking legal advice from an expert in the area, but there are several additional excellent resources available for employers and employees about their duties and obligations in the accommodation process. One of these, the BC Human Rights Tribunal website, includes a list of advocacy groups. You can access the Tribunal website here.
About the authorJulie practises workplace and human rights law at Roper Greyell LLP, in Vancouver. Previously a mental health professional, Julie takes on cases related to mental health disabilities, drug and alcohol issues and workplace misconduct and bullying and harassment investigations. Julie is Chair of the Advisory Committee for the Canadian Mental Health Association’s National Bottom Line Conference on workplace mental health, as well as a director of the board for CMHA’s North and West Vancouver branch
The “duty to accommodate” and the test of “undue hardship” are discussed in the well-known Supreme Court of Canada case British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 (S.C.C.), which is often referred to as the “Meiorin case,” and which created a unified test to determine if a violation of human rights can be justified as a bona fide occupational requirement. In the case, firefighter Tawney Meiorin successfully argued that a new series of government-adopted aerobic tests used to determine physical fitness discriminated against her on the basis of her sex. Not only was Meiorin unable to meet the aerobic test threshold after four attempts, but the majority of women would be unable to meet it. Because the Court concluded that the aerobic test was not reasonably necessary to fulfill the duties of a firefighter, and therefore not a bona fide occupational requirement, Meiorin’s termination of employment for failing to meet the aerobic test was discriminatory.