Despite the growing prevalence of mental illness in the workplace, many employees and employers are lost when it comes to understanding their rights.
According to the Centre for Addiction and Mental Health (CAMH), one in five Canadians will experience a mental illness in any given year and half a million Canadians are unable to work due to mental illness in any given week.
Unfortunately, the impact of silence is not as easy to measure. Less than one third of employees claim they would feel comfortable talking to their employer about their mental health. There is a noticeable increase in workplace “presenteeism” — when ill employees continue to work but are not performing as they should be at work . The need to remove stigma and dispel myths has never been greater:
- It could be a worker who is struggling at work and is not sure what to do.
- Or they may have taken action but not received fair or adequate support from their manager.
- In extreme cases they may have been outright dismissed because of the impact of their disability. But in all cases, employees have rights and options.
Employment lawyer Jill Lewis cautions that employees often wait too long before seeking advice. “We still see some people waiting to seek help until after they’ve lost their job due to mental health stigma or performance issues resulting from their mental health issues,” says Lewis, an associate at Nelligan Law. “We initiate conversations at all stages, but it’s best to speak with a lawyer early.”
Busting workplace mental health myths
Can I take a “mental health day”?
Yes. The law requires employers to treat mental and physical health difficulties the same. If an employee is dealing with a mental health issue such as stress, anxiety or depression, and requires time to recover, this must be treated the same as any other health difficulty or physical ailment.
How much do I have to tell my employer?
The law tries to balance the rights of employers to medical information with the employee’s right to privacy. Employers should be given only enough information to properly accommodate an employee. Generally, employers are entitled only to know how the employee’s condition is developing or progressing (a prognosis) and not the exact details of the health condition (diagnosis).
Do I just need a note from my doctor?
While your diagnosis is determined by a physician, the duty to accommodate is a legal test. Your medical questionnaire or doctor’s note should properly list your medical limitations and restrictions so that your employer can properly accommodate you. A lawyer can work with your doctor to provide
this information while still protecting your privacy.
Accommodations help manage symptoms
Accommodation isn’t necessarily about ensuring an employee remains in the workplace; it’s about taking steps so an employee’s disability is not the basis for excluding them from the workplace.
This was the situation facing Colleen*, a director with a global consultancy firm. A strong performer, Colleen is well-liked by management. Colleen struggles with anxiety and depression, which impacts her family life and sleep, elevating her blood pressure. Her physician recommended she reduce her hours at work, but when she approached her manager, Colleen was told she must continue working to meet her minimum billables, as those are the terms of her contract. As a result, she was given a warning of possible dismissal.
Colleen was being treated unfairly. “On its own,” Lewis warns, “failure to carefully consider how Colleen’s health difficulties could be accommodated in the workplace could be a violation of Colleen’s human rights.
“First of all, Colleen’s employer has a duty to accommodate her. It needs to consider what steps can be taken to assist her,” Lewis underlines. Options are numerous: the workload could be redistributed between directors, or the number of projects Colleen is managing could be reduced.
After consulting an employment lawyer, Colleen created a modified work plan with her employer and remained a valued member of the team.
Treating disabilities appropriately
A mental health disability can affect an individual’s life or job performance as much as a physical disability; it is up to the employer to treat all disabilities appropriately.
This was new information for Ravi*, a project manager at an Ottawa technology company. His employee evaluations were always strong, but Ravi went through a bout of depression and separated from his partner. He abused sleeping pills and alcohol and was admitted to hospital. Ashamed, Ravi was afraid to approach his employer about his situation. He became concerned he’d be reassigned or demoted. He called into work, claiming he had the flu and would be absent for a few days.
Be upfront with employers
It’s illegal for an employer to discriminate against someone simply because they have a mental health illness. “Workers in Ravi’s situation often just hide. Employees have a right to confidentiality,” Lewis says, “and they have a right to seek proper treatment which may include time off of work to pursue therapy.”
Finally realizing his situation could worsen without treatment, Ravi sought out legal advice before approaching his employer. “When the workplace culture supports mental wellness, employees are more likely to reach out and prioritize asking for the help they need,” emphasises Lewis. “Legal guidance can best ensure treatment doesn’t jeopardize career success.”
Setting the tone for success
An accommodation isn’t about treating a disability; it’s about managing symptoms. An employee’s complaints of pain, anxiety or depression may not always trigger an employer’s duty to accommodate, but they should trigger the employer’s duty to inquire.
Mental health rights provide the safety and security needed to create an environment where people can make health their priority. These rights need to be part of the growing awareness and understanding around mental health.”You can’t let fear, myths or a lack of information get in the way of your health” emphasizes Lewis. “Talk to a lawyer, know your options, and build a plan that supports your health.”
*Employee names have been changed to protect their privacy.
Busting workplace mental health myths
What if my employer does not have a process or support system in place?
An employee’s rights do not depend on an employer’s readiness or willingness to act on them. Having legal support from the outset can ensure your needs are met, and even help establish long term processes.
What if it is too late?
Even if your employer provided early accommodations for your health concerns, your full recovery gives you the right to return to your former role.
Can I be fired?
If you were fired due to the impact your disability had on your workplace, your employer may have violated human rights legislation. Even if the termination was just tainted by the disability, this could be enough to ground a claim of discrimination. Damages can include financial relief and/or reinstatement.
What if everybody finds out?
Your mental health disability must be treated confidentially by your employer. They cannot inform your colleagues. Your employer cannot discriminate.
For more FAQs, including how much accommodation must be provided and how it can impact compensation, visit https://nelliganlaw.ca/blog/employment-law/mental-health-faqs