Navigating conversations about mental health issues can be complicated, especially in the workplace. The Mental Health Commission of Canada’s 2010 report discovered that “the impact of mental health problems and illnesses [was] especially felt in workplaces and among working aged people”, which affected about 21.4% of the working population of Canada. However, many still consider mental health a strictly private matter and are hesitant to let their employer know about such issues. It becomes more complicated when an employee requires an extra day off or a change in their shift due to their illness. What do you do when you are faced with a situation where you need accommodation from your employer?
It is imperative that employees are aware that their rights are protected under Manitoba’s The Human Rights Code, CCSM c H175. According to Section 9 (1)(d) of the Code, one of the definitions of discrimination is “failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2)”. One of the protected characteristics listed in subsection (2) is physical or mental disability. The Code also provides, at section 14(1), that “No person shall discriminate with respect to any aspect of an employment or occupation, unless the discrimination is based upon bona fide and reasonable requirements or qualifications for the employment or occupation.” Therefore, employers have a legal obligation to provide reasonable accommodation to their employees in order to “create a level playing field”. Reasonable accommodation is “the responsibility to address and remove unreasonable burdens or barriers based on a protected characteristic that limit access to opportunities and benefits available to others.” However, accommodation is a multi-party process and requires cooperation of the involved parties. The employee needs to identify their special needs to their employers before the duty to accommodate is triggered.
What happens then when issues arise with your employer in relation to your mental health? An employee can complain to the Manitoba Human Rights Commission if he/she reasonably believes that he/she has been discriminated against. Ordinarily, the Code requires an employee, or anyone, to file a human rights complaint within one year of the incident complained about. Filing a complaint is free of charge and may require the individual to book an appointment. Registration of the complaint and an investigation will occur once all required information is provided and the other filing requirements are met. After an investigation has been concluded, and if a complaint is not settled or dismissed, then the Commission may designate an adjudicator and conduct a hearing on the matter. One recent example is Leonhardt v Government of Manitoba.
D.L. was an Informational Technology (I.T.) specialist for the Government of Manitoba. He claimed to have experienced physical discomfort after drinking from the office coffee pot. He believed that two of his colleagues were “tampering” with his coffee. He reported it to his immediate supervisor but the supervisor did not believe his allegations. The supervisor offered assistance but D.L. “firmly declined”. D.L. proceeded to bring this matter to the attention of his HR Manager. The HR Manager advised him to see a doctor and also informed him of the Employee Assistance Program (EAP). D.L. rejected this assistance and claimed that he did not require it. He also stated that he did not have any physical or mental issues. It was later found that he attended Klinic Community Health Centre, the Addictions Foundation of Manitoba, and a doctor’s office, but he did not disclose this information to his employer.
Another HR Manager was brought along to assist with the investigation and to make inquiries regarding D.L.’s work history. It was found that there were no issues regarding his attendance, productivity, or performance. Upon completion of the investigation, it was determined that D.L.’s allegations were “unsubstantiated”. They did not find anyone else who suffered from any discomfort after drinking the coffee. They also questioned other employees and concluded that no one had tampered with the coffee or food. On September 21, 2011, the management decided to terminate D.L. due to his “very serious, disruptive accusations against people in the workplace that were unsubstantiated”. They were worried that it would reoccur since he profusely refused to seek medical help or any assistance from his employer. On September 27, 2012, D.L. filed his complaint with the Manitoba Human Rights Commission. D.L. claimed that his employer discriminated against him when he was terminated, therefore contravened Section 14(1) of the Code.
It was established that D.L. had made out a prima facie case of discrimination because his employer perceived him as having a disability-related need and that it was the main factor in the termination. However, the adjudicator found that the employer had taken reasonable steps to accomodate D.L.’s needs. It was found that in this case, a more direct and better approach was not required. The employers recommended D.L. to attend EAP, to stop drinking coffee from the office, and to seek immediate medical help. Furthermore, they did not receive any information from the employee that would help them in assisting him. Therefore, it was found that the employer discharged their duty to accommodate and the complaint was dismissed.
Do you agree with the adjudicator’s decision that the employer’s conduct was reasonable and justified? Or do you think that employers, in general, should make direct inquiries to help their employees manage their mental health in the workplace?
*If you would like to read the complete decision of this case, please go to: http://www.manitobahumanrights.ca/v1/decisions/pubs/2018/2018-mbhr-3-leonhardt-v-gom.pdf
*This blog post is designed to briefly introduce the topic of reasonable accommodation in the workplace and mental health. This shall not be used as a basis for any potential claim. Please seek legal assistance if you require any legal advice.
*To access Manitoba Human Rights Commission’s guide to filing a complaint, please go to: http://www.manitobahumanrights.ca/v1/complaints/pubs/guides/guide_to_filing_a_complaint_en.pdf
By Christian Marie Gravoso
Pro Bono Students Canada (PBSC)