Don’t Judge, Ask – Mental Health Accommodation
Mental Health Week in Canada, taking place from May 6, 2024 – May 10, 2024, is just around the corner and the month of April is Autism Awareness Month. With Equity, Diversity & Inclusion (EDI) initiatives, many workplaces are striving to better understand mental health and neurodiversity, and proactively create inclusive environments. As we take steps to create workplaces that remove barriers and celebrate diversity, it is a good time to revisit principles of accommodation that are embedded in human rights legislation.
The Duty to Accommodate
Workers have the legal right to have a disability accommodated up to the point of undue hardship, pursuant to Ontario’s Human Rights Code. This includes both the procedural aspect of taking steps to gather information about and understand the worker’s accommodation needs and the substantive aspect of providing the accommodation, up to the point of undue hardship (ADGA Group Consultants Inc. v. Lane, 2008 CANLII 39605 (ON SCDC)).
The Duty to Inquire
While the law has established how accommodation should work, the reality is that this rarely plays out perfectly. Given the stigma associated with mental health and neurodiversity, employers should expect that some accommodation needs may be less obvious, and workers may be less forthcoming with requests and information.
In Casper v. Treasury Board (Department of Citizenship and Immigration), 2023 FPSLREB 36 (CanLII), the Federal Public Sector Labour Relations and Employment Board emphasized duty to inquire principles set out in Sears v. Honda of Canada Mfg., a division of Honda Canada Inc. 2014 HRTO 45, in echoing that once an employer has some knowledge of an employee’s health situation, they must inquire further and the decision to discipline an employee for what are reasonably “red flags” of mental health related conditions is discriminatory. While an employer might typically find that difficulty in maintaining harmonious relationships with others requires discipline, if the employer knows that symptoms of a medical condition impact a person’s interactions with co-workers, the employer should pivot to inquiring, instead of automatically disciplining.
These principles were echoed by the Human Rights Tribunal of Alberta, in Calkins v. Broadview Homes (Alberta) Ltd., 2023 AHRC 45 (CanLII), where the Tribunal found that an employer had enough information to trigger further inquiry into symptoms associated with a brain disease affecting cognitive ability, instead of simply judging the worker for poor performance.
Overall, the duty to inquire does not replace a worker’s responsibility to let an employer know that they need accommodation, and accommodation is still a two-way street. However, where an employer has enough information to reasonably suspect that there may be a connection between conduct and disability, they are expected to inquire, instead of immediately reacting with judgment and discipline.
Best Practices
EDI initiatives can potentially reduce stigma and implement policies that could reduce the need for accommodation requests. However, greater awareness does not extinguish the duty to accommodate with individualized accommodation assessments. The following is a non-exhaustive list of best practices to prevent discrimination and promote inclusive workplaces:
- While creating EDI based policies and practices, ensure that the workplace’s accommodation and accessibility policies are clear and separate.
- Avoid drawing conclusions about what an individual worker needs based on personal or academic knowledge of mental health conditions and neurodiversity.
- Do not ask workers who have disclosed conditions to educate the workplace or cite them as an example in workplace workshops. Instead, rely on EDI experts and published information.
- Stay up to date on appropriate and respectful terminology for neurodiversity and mental health conditions.
- Use knowledge gained from increased awareness of mental health and neurodiversity to avoid judging individuals who do not interact in traditionally “normal” ways. However, still comply with the duty to accommodate to ensure that individual needs are understood and can be met.
Written by: Shannon Sproule