Today is Bell’s “Let’s Talk Day” and the entire month of January has brought mental health issues to the forefront of the media – seems like the perfect time to talk about the legal aspects of Mental Health.
A mental health problem is a tough problem for an Employer to deal with. Mental heath issues can range from depression to psychosis. The impact on a business can be a slight as a receptionist who is not an enthusiastic greeter due to depression to a co-worker who kills someone in the workplace.
The Ontario Human Rights Code requires Employers to accommodate disabilities unless doing so would create undue hardship. This means that you cannot fire the receptionist who is depressed, you must accommodate her. How do you accommodate? If you have Group Benefits that include counseling, suggesting s/he take advantage of those benefits is a good starting place. Moving the receptionist to a different position that does not require a cheery disposition, but is not viewed as a demotion (i.e. an administrative position of equal responsibility and pay) may be another strategy, but it is important that it not be viewed as a punishment for the disability.
This is tricky law. Everything you do should be documented and frankly, you should have a lawyer involved as soon as you suspect a mental health issue is impacting an employee.
The Occupational Health and Safety Act requires Employers to provide a safe workplace. You must be on the lookout for acts of violence by co-workers or even customers, against your employees.
Of course, the real challenge is when a worker with a mental health issue commits a violent act as a result of that. Now you have to balance one statue against another. The Human Rights Commission believes that their Code trumps the Occupation Health and Safety Act, are they right? If you’re in this position, you really need a lawyer.
We need to be aware of Mental Health issues and Bell’s initiative to encourage people to talk about them is a positive for an Employer. Once you’re aware of an issue it is easier to accommodate it (did I mention you have a duty to accommodate, even if you’re not aware of it?).
If your company is struggling with dealing with these issues, feel free to call our firm, any day, including today: we’re always available to talk.
Inga B. Andriessen JD