By Donalee Moulton
In June, the Ontario Human Rights Commission released a new policy that provides guidelines on how to define, assess, handle and resolve human-rights issues related to mental-health problems and addiction disabilities. Guidance is certainly needed, as employers in Ontario have legal obligations to accommodate employees with mental-health issues and addictions — both of which are protected grounds under the Human Rights Code.
By Donalee Moulton
The Ontario Human Rights Code basically says you can’t discriminate on the basis of disability in the workplace, period. It doesn’t say a whole lot [more],” says Barbara Hall, chief commissioner of the Ontario Human Rights Commission (OHRC), based in Toronto. “So what does that mean for the individual and the employer?”
Chris Hornberger, management consultant with Halifax Global Inc. in Nova Scotia, notes that employers are looking for information about how they can help employees and how they are expected to help employees. “Such information can be hard to come by and hard to decipher,” says Hornberger, who also sits on the board of directors with the Entrepreneurs with Disabilities Network in Halifax.
The Policy on Preventing Discrimination based on Mental Health Disabilities and Addictions is intended to answer that question.
Camille Quenneville, chief executive officer with the Ontario division of the Canadian Mental Health Association in Toronto, says the policy will “help to advance human rights and inclusion for people living with mental-health disabilities in Ontario and will also provide employers and other service providers with greater understanding about their roles and responsibilities.”
Hornberger adds that “policies like this enhance understanding, and greater understanding means that organizations are more likely to implement necessary changes.”
The fact is, mental illness indirectly touches many Canadians at some points in their lives, through family members, friends or colleagues. According to the Canadian Mental Health Association, 20 per cent of Canadians will experience a mental illness in their lifetimes and approximately eight per cent of adults will suffer from a major depression. Anxiety disorders affect five per cent of households; bipolar disorder and schizophrenia each affects one per cent of Canadians.
Workplaces are not spared either: mental-health problems and illnesses, which account for approximately 30 per cent of short- and long-term disability claims, are rated as one of the top three drivers of such claims by more than 80 per cent of Canadian employers.
Under section 5 of the Human Rights Code, every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status or disability. The Code was amended in 2012 to extend protection to transgender people. As such, the 109-page document is not written solely for employers, but intended for use by practitioners across all social areas covered by the human-rights legislation.
Celia Chandler, lawyer with Iler Campbell LLP in Toronto, notes that as the majority of human-rights applications filed with the Human Rights Tribunal are in the workplace context, the new policy frequently cites examples from employment situations.
She also suggests that while the policy does not carry the weight of law, it is not without influence in the legal arena. “These policies often inform the decisions of the Human Rights Tribunal, the adjudicative arm of the human-rights framework in Ontario,” Chandler says.
Changes to Ontario’s human-rights law in 2008 include section 45.5, which requires the tribunal to consider commission policies if one of the parties or an intervenor requests this. Furthermore, if the commission itself is an intervenor and believes that the tribunal’s decision is inconsistent with one of its policies, it can request that the case be referred to the Divisional Court to address the inconsistency.
“There is [a] greater likelihood now that [policies] will be even more persuasive in terms of litigation,” says Catherine Peters, partner with Hicks Morley Hamilton Stewart Storie LLP in Toronto.
The policy addresses five key areas: different forms of discrimination; rights at work, in rental housing and when receiving services; organizations’ responsibilities to prevent and eliminate discrimination; creating environments that are inclusive and free from discrimination; and applying the duty to accommodate people with mental-health or addiction disabilities.
The document is the outcome of work the OHRC did in mental health and addictions from 2009 to 2011, during which the organization consulted more than 1,500 individuals and groups to develop a mental-health strategy. The findings from those consultations are recorded in Minds that Matter: Report on the Consultation on Human Rights, Mental Health and Addictions, released in September 2012. The OHRC relied extensively on this input and additional consultations last year when developing the new policy.
“We got the largest response to any issue we have ever gotten,” Hall says. “People were fearful. They did not know their rights.”
Often, there is a stigma attached to mental-health issues that prevents individuals from speaking up for fear of reprisal. Colleagues and employers may also hesitate to ask or offer help, so as not to come across as being intrusive.
“Everybody has had a member of the family with mental illness, and they have learned not to talk about it,” says John Starzynski, president of the Mood Disorders Society of Canada in Guelph, Ontario.
“When you bring this into the open, people will react. They will be uncomfortable, even if they don’t know why they are uncomfortable,” adds Starzynski, who is also the volunteer executive director with the Ontario Lawyers’ Assistance Program in Kitchener, Ontario.
Hornberger acknowledges that fear and discomfort surrounding mental-health issues have a significant effect on supervisors, workers and their colleagues. “Individuals are reluctant to disclose that they have a mental-health issue, and that makes it difficult for employers to accommodate their needs,” he suggests.
Indeed, during the human-rights commission’s consultations, the OHRC heard from individuals who had quit their jobs rather than ask for an accommodation. “The fear of the stigma was greater than the loss of their job,” Hall notes.
The new policy is designed to give individuals a clear understanding of their rights and perhaps help them to be more confident in asserting those rights. Accommodation is a key area. Section 17(2) of the Ontario Human Rights Code requires employers to accommodate disability to the point of undue hardship, considering cost, outside sources of funding and health and safety requirements.
The duty to accommodate is guided by the following principles: respect for dignity (which includes considering how accommodation is provided and the person’s own participation in the process); individualization (addressing an individual’s needs when responding to an accommodation request); integration; and full participation (accommodations should be developed and implemented with a view to maximizing a person’s integration and full participation).
“A person seeking accommodation is generally required to disclose to the employer that they have disability-related needs,” Quenneville advises. “The employer must take requests for accommodation in good faith, and requests for information should be limited to information that is related to the nature of the work-related limitation or restriction, for the purpose of needs assessment and providing accommodation,” she adds.
As well, the OHRC makes it clear that organizations should not ask for unnecessary, confidential medical information and that they are not to second-guess or diagnose the conditions themselves, Quenneville notes.
But this position is a departure from the OHRC’s previous statements regarding the scope of an employer’s obligation to provide accommodation. In the past, the commission has taken a hard line on exceptions to the accommodations requirement by insisting that demonstrating undue hardship would be very difficult. Some courts and legal decision-makers have rejected this position.
Now, Peters says the commission is “starting to acknowledge there are other arguments a company can make. They are starting to open up a bit.”
Duty to Accommodate
Employers may not be aware of the lengths to which they are expected to go when accommodating an employee suffering from a mental-health issue. The consequences of an employer that is found to have breached its obligations to accommodate mental-health disabilities as required under the Code can be significant.
In June 2010, the OHRC delivered a decision involving a Toronto police constable, who had developed post‑traumatic stress disorder (PTSD) stemming from an on-the-job incident. The condition interfered with his ability to perform his duties as a police officer and resulted in his overreaction to what he perceived as a threatening situation, when faced with an intoxicated patron at a fast-food restaurant.
While his supervisors believed that he might be suffering from PTSD, the incident at the fast-food chain was investigated as simply a case of professional misconduct. They did not offer appropriate accommodation and, instead, suspended him as unfit for duty. “The police services board was ordered to reinstate him and pay him $35,000 for injury to dignity, feelings and self-respect,” Chandler reports.
“If an employer perceives that an individual has a mental-health disability or addiction, then the employer has a responsibility to inquire about accommodation-related needs,” Quenneville stresses.
The OHRC highlights some of the best practices for employers who want to ensure that they have discharged their obligations towards employees’ accommodation-related needs.
Instead of waiting for employees to speak up, Starzynski recommends that employers recognize the real factors — discrimination, reprisal and isolation — that inhibit employees with a mental illness or an addiction problem from stepping forward.
Adopting a proactive approach also helps: employers should ask what accommodations can be made to help with the employee’s job. “Have a list of accommodations ready. Show what you are able to offer,” Starzynski advises. “Employers want to do this because employees are valuable. It is pretty darn expensive to replace someone.”
Hornberger recommends putting flexible policies in place. “Mental-health issues are often episodic. Individuals may be fine for several weeks, months or years. But when an issue arises, support needs to be in place and this support needs to be backed by policy that gives employees the time, space and resources they need.”
In its policy, the OHRC encourages organizations to develop strategies to prevent discrimination based on all grounds identified in the provincial Human Rights Code, with specific consideration given to people with psychosocial disabilities. A complete strategy to prevent and address human-rights issues should include the following: a barrier prevention, review and removal plan; anti-harassment and anti-discrimination policies; an education and training program; an internal complaints procedure; and an accommodation policy and procedure.
Training can also help employers understand their obligations and the opportunities they have to help valued employees. This will not only create a culture that embraces all workers, but also send an important message about the company’s commitment to diversity and respect in the workplace.
Beyond training, Chandler advises that employers review employment policies and practices to ensure that all hiring, management and termination fall within the parameters delineated in the Code.
“Observing and promoting the employer’s human-rights obligations not only ensures that the workplace reflects the diversity of the broader community, which is good for business and creates a more robust organization, but it is the law,” Chandler says.
Distinguishing fact from fiction may be part of this support. For example, many people associate mental illness with an increased propensity for violence. “People with mental-health-related disabilities are no more likely to be violent than members of the general population,” Quenneville says. “In fact, people with mental-health disabilities are more likely than the general population to be victims of violence.”
Donalee Moulton is a writer in Halifax.
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|The Legal Test
Ontario’s Human Rights Code seeks to eradicate discrimination in employment, housing and the provision of services. As such, the new Policy on Preventing Discrimination based on Mental Health Disabilities and Addictions, released in June by the Ontario Human Rights Commission, was developed to guide society at large in respecting the rights of people with mental-health or addiction disabilities.
For employers who face human-rights complaints within their organizations, the policy cites the following factors that will be considered when assessing if an organization has met its duty when responding to a human-rights claim:
• Procedures in place at the time to deal with discrimination and harassment;
• The promptness of the organization in responding to the complaint;
• How seriously the complaint was treated;
• Resources made available to deal with the complaint;
• Whether the organization has provided a healthy environment for the person who complained; and
• How well the action taken was communicated to the person who lodged the complaint.
The new policy, however, does not speak to substance testing, which is addressed in another document prepared by the commission. Nevertheless, the two policies work together as guides for, among others, employers who want to ensure that they have fulfilled their obligations under the province’s Human Rights Code, says Celia Chandler, a lawyer with Iler Campbell LLP in Toronto.
As drug or alcohol dependency can fall within the protected ground of disability, health and safety is certainly one of the considerations when determining whether an employer has accommodated an addiction problem to the point of undue hardship.
“The human-rights commission states in its Policy on Drug and Alcohol Testing that substance testing is prima facie discriminatory. However, it lays out a test to meet and a process to be followed in the case of testing for safety-sensitive positions,” Chandler says.