When Mental Health Meets Canada’s Favourite Pastime
A human rights claim alleging discriminatory reasons for a termination is sure to get noticed this week as it intersects with Canada’s favourite pastime: hockey. A former video analyst for the Canucks, Rachel Doerrie, filed a claim alleging that she was told she wasn’t “mentally fit” for the job just days before being terminated by the organization. She is now seeking monetary compensation and asking the human rights tribunal to make orders that will address the discrimination.
Why This Matters for Your Workplace
While we won’t know the outcome of that claim for some time, employers should sit up and take notice. Now, almost 3 years into the pandemic, society is still struggling with a new normal and it’s obvious that mental health issues and the discussion about these issues are at an all-time high. It’s also likely that this issue will come to pass in your workplace. Responding in a way that could be concluded to be discriminatory could cost you a lot of time, money and stress.
Take one Ontario case from 2008 as a high watermark of just how much this could cost you.
The employee in that case was terminated after disclosing a mental health condition and linking it to their struggles in meeting the demands of the job. The actions of the employer were found to be discriminatory and the employee was awarded $80,000 in lost compensation and damages.
What Can You Do?
So what can you do to avoid a potentially costly claim? Accommodation can be tricky no matter the medical circumstance, but here are some helpful starting points:
- Be aware and listen carefully: While some employees are forthcoming about their mental health diagnosis in interviews, not all employees will be. Be on the outlook for phrases like “due to my medical condition” when employees are talking about struggling with their work. This also applies to requests for accommodation. Look out for phrases that suggest the employee really wants to be accommodated, like: “I am struggling but I really want to continue working here and hope we can find a way to make this work”.
- Offer assistance or accommodation: If an employee does tell you they are struggling, consider offering assistance through an employee assistance program, or if they use terms like “medical condition”, ask whether they need accommodation.
- Ask for medical documentation: Assuming your employee says they need accommodation for their medical issue, ask them to submit medical documentation outlining the symptoms they are struggling with so you have a substantiated starting point for discussions.
- Meet with your employee: Accommodation is a two-way street so meet with your employee to consider what might work for an accommodation. You make the ultimate decision on what works, but involving your employee in the process is not only legally required but often a very helpful starting point.
- Accommodate up to undue hardship: Undue hardship is met when the accommodation impacts the workplace or the employee cannot fulfill their duties despite your best accommodation efforts. Meeting the test for undue hardship is generally difficult for employers and is fact-dependent considering both the workplace and the employee.
Ultimately, an accommodation must be provided before determining that an employee is unable to meet expected standards where you know or ought to have known that the struggle is related to a medical condition.
While these are some helpful starting points, accommodations can be overwhelming to navigate for any employer, so don’t hesitate to get in touch.