Employer Obligations and Duty to Accommodate

It is important that supervisors and leaders notice changes in employees’ behaviours, and try to support employees regardless of the suspected cause of those changes. However, when these changes affect performance the employer has a ‘Duty to Inquire’ about whether the changes in performance could be related to a health concern.

If an employee is experiencing performance issues, first rule out the possibility that it may be related to a health issue or disability before you consider disciplinary action. In any case, continue supporting performance in a psychologically safe way.

Workplace Strategies for Mental Health offers a Task Improvement Process guide on how to help support an employee improve their performance or productivity on a specific task.

“Canadians with mental or physical disabilities have the right to live free from discrimination, to enjoy the same quality of service, quality of education, quality of vocation, quality of inclusion and the same quality of life as every person in Canada.”

This statement applies to everyone. Therefore, employers have a duty to provide all employees with a safe and healthy workplace. This means employers must ensure the work environment is free of bullying, harassment, and discrimination.

Similarly, employers have a ‘Duty to Accommodate’ employees struggling at work due to a mental disability. This is where it can be confusing for employers because it can lead to the question, what exactly is a mental disability? Just as having the common cold doesn’t constitute a physical disability, experiencing poor mental health doesn’t necessarily constitute a mental disability.

The Canadian Human Rights Commission defines mental illness as being characterized by “alterations in thinking, mood or behaviour—or some combination thereof—associated with significant distress and impaired functioning.” The range of symptoms varies and will differ from person to person.

Individuals will need to work with a health professional to determine whether their mental health challenge constitutes a disability. This is not a decision that the workplace makes.

Language related to physical and mental health is always evolving, and the terminology each individual prefers to use on a day-to-day basis can be a very personal choice.

An employer’s Duty to Accommodate is triggered only when an employee’s symptoms rise beyond the normal threshold of ordinary, day-to-day stress or anxiety. But this can be a significant challenge for employers, as there is often no way to quantify symptoms.

Some accommodations are easy to make, and supervisors or managers may have the discretion to implement them (e.g. an altered break schedule). Other accommodations may require more consideration and input from appropriate professionals (e.g. a significant change in duties or work schedule).

Before addressing a concern, consider what is appropriate to discuss at work and how the issue is impacting the workplace. For example, an employee’s weight fluctuation would not be appropriate to address at work, but patterns of showing up late likely would be, even if the root cause is the same.

Once again, regardless of whether someone is experiencing a mental health challenge, all employees deserve a workplace culture that promotes well-being. Conversations around support, which may include accommodations, can happen more comfortably and safely when workplace leaders demonstrate that they will be respectful and check-in with their employees regularly.