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Employment Law & Mental Health

November 30, 2020 Leah NacuaBrampton, Durham, GTA, Mississauga, Vaughan 392 Views

Over the last few months, many manufacturers have been deemed as essential workplaces and have continued their operations with modified schedules and/or practices to keep employees safe.  While employers strive to ensure employee safety, some employees may struggle with mental health concerns either as pre-existing conditions and/or triggered by feelings of anxiety, stress, and strain from the ongoing pandemic.  Employers may need to make accommodations and other provisions for affected employees to avoid costly breaches of the Human Rights Code.

Recently, Members of our GTA Consortiums and Guests enjoyed a discussion regarding employment law and mental health with Ron Minken from Minken Employment Lawyers and leading Psychologist Dr. Joseph Garber.  Some of the topics covered were:

  • Employer duties and strategies for bringing employees back to the workplace (from temporary layoff, or from working from home) , and mental health considerations – Be mindful of providing notice of return; have a clear return-to-work policy, including expectations when working from home; employers have duty to accommodate employees who may be unable to come back to work immediately
  • Red flags in the workplace – Look out for changes in behaviour, performance, physical condition
  • Employer’s obligation when an employee is unable to continue work due to mental health concerns – Ron Minken spoke about an employer’s obligation to accommodate, to the point of “undue hardship” (which is not always easy to distinguish from “hardship”).  This must be considered on a case-by-case basis. 

Dr. Garber used a very memorable analogy during the discussion; he likened the human brains to having their own “air-conditioners”, i.e. an internal system that allows for homeostasis, adjusting accordingly to psychological stressors.  Each person’s system will be different in terms of efficiency and capacity;  hence, effectiveness in cooling will vary as well.  Like any air-conditioner, psychological health also requires regular maintenance.

Event attendees also had a chance to ask questions after the panel discussion:

  • Work refusal due to change in work schedules arising from employer’s COVID-related efforts
  • Actions to take when employee(s) fail to follow mandatory screening protocols
  • Dealing with workplace harassment and violence issues during these challenging times

Navigating Mental Health Issues at the Workplace

After the event, Ron shared a 5-page Q&A document with further content, answering the following questions:

  1. Can an employer approach job applicant about their mental health?  If job applicants are not legally obliged to disclose a mental health condition during the hiring process, are they legally obliged to then disclose it if they are offered the job?
  2. Does an employee have to disclose they are suffering from a mental health condition at any stage during their work?  What should employers do if an employee or job applicant discloses a mental health concern?
  3. What can I do if the employee refuses to speak with me about their mental health condition?
  4. What if an employee hasn't disclosed a mental health issue and they subsequently go off sick? 
  5. What do you do if the employee refuses to acknowledge any needs requiring accommodation?
  6. How do you accommodate mental illness in the workplace?  What if the employer provided an accommodation, but the problems still exist?  What if accommodating an employee is too difficult for an employer?
  7. Can I dismiss an employee because of their mental health condition?
  8. What if an employee claims they cannot work because concerns over COVID-19 exposure (i.e. (while at work or during their commute) is affecting their mental health?  Does psychological distress constitute a disability that requires accommodation?

For anyone interested in the answers to these questions, please click here.  Additional free Employer Guides can be found at the bottom of the Q&A document, or can also be downloaded from their website:  www.MinkenEmploymentLawyers.com

To obtain a detailed summary of the event and/or a copy of the event recording, or to learn more about EMC, please feel free to reach out to me at lnacua@emccanada.org.

Very special thanks to Ron Minken and Dr. Garber for sharing their knowledge and insights to all of our Members and Guests who were able to participate in this informative session!