Mental health in the workplace and the law
Mental health matters, at a personal and a professional level. Consider these Canadian worker statistics1:
- 7 million Canadians will experience a mental illness annually
- 82% of employees with mental health issues say that it impacts their work
- 68% of Canadians said that their mental health had worsened during the pandemic
- 47% of Canadians say that work is the most stressful part of their day
- 38% of employees would not tell their employer if they were dealing with a mental health issue
- 40% of Canadians say that mental health has disrupted their lives
- 17% of Canadians have taken time off from work or school to deal with a mental health issue
These stats serve as a wake-up call for Canadian workplaces and employers, collectively, to be doing better in understanding mental health issues as a disability and when they may require (or not) a duty to accommodate.
How can we do that? What role do employers play in improving Canadian mental health overall? What are employers’ obligations in this space, and what duties do they have to make sure that workers are able to cope? How can employers help improve conditions to keep an open dialogue, and bring mental health out of the shadows?
First, a legal lens on mental health and addiction issues
Employers and employees ask me all the time about their rights and obligations in these issues. In this blog, I will address the role employers play in protecting the mental health of their employees, from allowing proper medical leaves, to protecting against harassment and bullying.
When it comes to mental health the lines between the personal and the professional can easily blur. While employers often do not have control over what employees do in their private time, they are (as seen by the above statistics) affected when issues begin to bleed into an employee’s work.
The primary piece of legislation that protects employees facing a mental health issue in most Ontario workplaces is the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”). It is the Code that specifically protects employees from discrimination in employment based on a wide range of ‘enumerated grounds,’ among them race, age, sexual orientation, gender identity, family status, and disability. The Code further protects employees from harassment in employment based on these same grounds.
Note: The definition of “disability” is broadly applied, and includes most any disability including physical disabilities, mental health disabilities, addiction and substance abuse issues, and even the perception of having a disability.
Discrimination: The scope of these obligations expands broadly. Employers cannot discriminate against an employee because of their disability, or because they are seeking medical attention to treat their disability. For example, if an employee requires time off from their work schedule for mental health treatment such as counselling or therapy, they cannot be penalized for their absence. It is key to note that employers are not entitled to any confidential medical information, such as an employee’s specific diagnosis or treatment. They are only entitled to documentation about how the employee’s disability might affect them in the workplace.
Accommodation: Employers have a duty under the Code to accommodate to the point of ‘undue hardship.’ In other words, they need to accommodate employees unless it is almost physically or cost prohibitive to do so. Thus, if an employee requires time out of their schedule to attend counselling, and the time off creates a mild inconvenience for their employer, the employer is still required to accommodate this request. If an employee is dealing with a depressive episode and is unable to attend work for several days, they may not be entitled to a paid absence (it will depend on their contact and/or an employer’s specific policies) but their employment cannot be terminated simply because they missed work due to illness, or if they have addiction or mental health issues.
Duty to Inquire: One additional requirement under the Code that employers often miss is the duty to inquire. Employers know their employees well, and if they suddenly (or even gradually) notice significant changes in an employee’s behaviour that may relate to a mental health issue, they actually have a responsibility to politely ask the employee if they need any help. This may be something as obvious as outward signs of addiction, such as smelling alcohol on one’s breath on multiple occasions. In some cases, it may be personality changes, or changes in one’s work, that are entirely out of character from the employee’s regular performance. Employers aren’t allowed to know the specifics of what’s going on, but they do need to make sure the employee is doing okay and can offer resources like an employee assistance program, if available and if needed.
Violence and Harassment in the Workplace: Lastly, while the Code protects against harassment, there are additional protections for workers in provincially regulated workplaces found in Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “Act”) of which employers also need to be aware. The Act has received key updates in recent years—the first through Bill 168, which added employer requirements around bullying and harassment, and more recently through Bill 132, which included workplace sexual harassment to the definition of workplace harassment.
The Act defines harassment in part as “a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome,” and the definition of workplace sexual harassment is broader still. Practically speaking, this sort of conduct includes bullying, inappropriate jokes, inappropriate comments, deliberate ostracization, touching, leering glances, etc. Not only is this conduct wholly inappropriate at any time, but it can be severely damaging to an affected employee’s mental health. The Act requires employees to maintain policies and procedures against such conduct, and employers are required to investigate reported inappropriate conduct to curtail that sort of behaviour and its aftermath.
Consequences of bad employer behaviour
While employers have obligations under various statutes to protect employee’s mental health, the law can work the other way as well. In several notable legal decisions, both before the Ontario Superior Court of Justice in Ontario as well as the Human Rights Tribunal of Ontario, employers have been punished via aggravated and punitive damages for conduct that worsens an employee’s mental health during an already difficult period.
In one of the most notable cases in recent years, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, an assistant manager at Wal-Mart’s Windsor location was repeatedly and publicly bullied by her store manager. He belittled her, swore at her, and humiliated her in front of colleagues. When she launched a formal complaint, the corporation failed to conduct a proper investigation, and found that her complaints were unsubstantiated. When she later quit after a final incident, the manager openly expressed joy to colleagues at her departure, as he had achieved his goal of her leaving.
At trial, the employee was awarded $100,000 in mental distress, which the former manager sought to overturn on appeal. The Court of Appeal ruled that, while high, the amount was appropriate given the circumstances. In their view, “The harm Boucher incurred because of Pinnock’s [the manager] conduct was severe. She suffered serious physical symptoms. She went from a cheerful, productive worker to a broken and defeated employee, left with no reasonable alternative but to resign. Her symptoms eased only when Pinnock no longer controlled her employment.” The Court however did revise the ward for punitive damages against the manager from an additional $150,000 down to $10,000.
The Court of Appeal further upheld an award against Wal-Mart the corporation for an additional $200,000 in aggravated damages for its failure to act on Ms. Boucher’s complaints. While the manager may have been a bad employee in his own right, the greater company failed to protect her.
The Court held that, “Wal-Mart took no steps to bring an end to Pinnock’s misconduct. It did not take Boucher’s complaints seriously, finding them unsubstantiated despite substantial evidence from co-workers that they were well founded. It failed to enforce its workplace policies, which on their face were designed to protect employees from the kind of treatment Pinnock subjected Boucher to. And it threatened Boucher with retaliation for making her complaints, an especially vindictive act.” An additional punitive damages award against Wal-Mart for their conduct was lowered from $1M million to $100,000.
This case is obviously among the more extreme examples, and not every employer who behaves badly will be faced with an aggravated or punitive damages award against them. Yet courts and tribunals (and arbitrators) do not take kindly to an employee’s mental health being abused or ignored, especially if the corporation has the power to make change and fails to do so. Employers need to protect employees’ mental health not only because it is a legal requirement, but financially it is also in their best interests to do so.
Assistive strategies and (potential) solutions
Employees should be made aware of any paid and unpaid leaves of absence, depending on the situation, that may be available, as well as any disability benefits, and other benefits and entitlements (leaves of absence are a blog unto themselves, and I will address these in the coming months).
Employers need to be mindful of the fact that there may be an obligation to provide information and assist in a given situation. For example, the most common, and easily utilized, is the Employer Assistance Program, or EAP. While some employees may be familiar with the term ‘EAP,’ few have actually made use of the program themselves, or realize its capabilities, even though it is included in most benefits plans.
EAPs are confidential resources designed for employees to use in exactly these sorts of circumstances. While they were initially created to help treat alcoholism that was affecting the workplace, the range of services has broadened to include a network of counselling and social work supports, addiction treatments, etc. EAP counselling can extend beyond workplace issues and is usable by a member’s family as well. Most importantly the records are kept in strict confidence, and use of an EAP never goes into a personnel file.
Additionally, there are always measures that employers can take to promote good mental health. Many health-conscious workplaces have been offering fitness credits for some time now, which represents an extended benefit for a certain amount that employees can use on everything from gym memberships to yoga classes to home workout equipment. Other workplaces have sought to make the actual workplace healthier by bringing in a yoga or meditation teacher regularly or encouraging frequent breaks. Even something as simple as shortened hours on Fridays through the summer can give employees that extra time to de-stress.
What experience has taught me
In nearly three decades of practice as an employment lawyer, and more than a decade as a mediator, I’ve learned a few things about workplace mental health which I am always happy to share.
The first is that good practices in the workplace can make for good habits. At my previous firm, some of us developed a meditation practice that became part of the firm’s ethos. It did not make us any less zealous in our litigation and did not weaken our advocacy skills one bit. Instead, it strengthened them. We focused on becoming the best version of ourselves, so that we could offer our best selves to our clients.
The second is that while performance management and discipline are important for an effective workplace, a little bit of kindness and compassion goes a long way, especially when someone at work experiences the death of a loved one, divorce or separation or caregiving. Major life events can throw anyone off, including me. Take the past two years, for example. Colleagues and co-workers may have faced private battles and losses that they’ve deliberately chosen to keep out of the workplace. Even if that ‘duty to inquire’ alarm is not going off in your head about your employees, consider that whoever you’re speaking with may be facing challenging circumstances that may be impacting their work without them knowing. Then again, you may very well need to discipline an employee, but there are ways to do that compassionately too.
Lastly, stay alert and stay up to date. As an employer or HR professional you will notice that the dialogue about workplace mental health is an ongoing one, and there is always more to learn. For some years now I have been a panelist and speaker for the Osgoode Certificate in Workplace Mental Health Law. The program spans several days and covers a variety of mental health law topics such as employers’ duty of care, available resources, and navigating substance abuse issues. It would be wonderful to have you part of it.
1 Source: Canada Life, Workplace Strategies for Mental Health, various research psychological health and safety statistics
If you are an employee or employer, I can help you with any contract-related or other workplace issue. I have more than 25 years’ experience as an employment lawyer with satisfied, repeat clients.
If you are a lawyer or paralegal looking to hire a mediator or arbitrator for your employment law dispute, I have been a neutral for over a decade. I conduct employment mediations and arbitrations via videoconference, in-person, and in a hybrid format.
This blog is for educational purposes only and is not intended as legal or other professional advice.
