'There's a difference between being direct and being discriminatory,' says lawyer discussing mental health accommodations
Accommodations for mental health disorders can not be used as a “get out of jail free card,” a recent decision by the B.C. Human Rights Tribunal (HRT) affirmed.
However, the decision also highlights gray areas that can exist around employer responsibilities for providing accommodations for employees with mental disabilities, and the importance of documentation and disclosure.
Because of the “invisible” nature of some mental health conditions, the negative effects they can have on job performance can be overlooked if they’re not disclosed, explains David Brown, partner at Ascent Employment Law in Vancouver.
“We need to recognize that there's still a lot of stigma around mental illness, around depression, around anxiety disorders, around addictions issues, around ADHD,” says Brown.
“If people feel that they may be targeted, or their condition may be unwelcome, they may be hesitant to disclose that, even when they require accommodations.”
Legal perspective on accommodations for mental disorders
In its decision, the Tribunal dismissed a complaint from an employee against her union, the Hospital Employees’ Union (HEU). She alleged that the union discriminated against her based on mental disabilities, including a documented brain injury and ADHD, during the handling of her grievance following her termination from Princeton District Community Services Society (PDCSS).
The employee was hired in 2019 as a residential support worker at PDCSS, her first job following a severe brain injury in 2017 and about a year and a half of rehabilitation. She also has ADHD; the union claimed the employee did not establish that she had an ADHD diagnosis, regardless, the HRT found her disclosure sufficient, stating she “has ADHD and that her ADHD is a disability for the purposes of the Code.”
PDCSS terminated her employment in April 2020, citing various incidents of misconduct, including tardiness, unauthorized overtime, and inappropriate behaviour with clients including using steak knives as darts during a darts game, according to court documents.
The HEU, her union, filed a grievance on her behalf, but the employee felt that the union’s representation was inadequate and discriminatory, leading her to file a complaint with the Human Rights Tribunal.
However, the Tribunal ruled against the employee, stating that she had not established that her disabilities were a factor in any adverse impact related to her union representation. The Tribunal noted “dissatisfaction with union representation alone does not constitute discrimination under the Human Rights Code.”
Accommodations for mental health conditions
One of the key takeaways from the Tribunal's decision is not only the importance of employer awareness of their duty to accommodate, but also of their limitations in doing so without adequate information, Brown explains.
“An employer cannot accommodate disabilities which they don’t know exist,” Brown says, explaining that the duty to accommodate begins with two critical questions: “Does the person have a disability? And if so, does the employer know about that disability, or should they reasonably have known about it?”
In this case, the Tribunal found that PDCSS had acted on the medical information available to it at the time, which indicated the employee was fit to perform her job duties. It was only after her termination that the employee provided new medical information, claiming her need for accommodations due to her brain injury.
However, as Brown noted, “the employer was treating this purely as a misconduct case,” arguing that they could not be expected to accommodate conditions they were unaware of.
The role of documentation and mental disorder accommodations
One of the critical issues in this case was the timing and content of the medical documentation provided. Brown highlighted the importance of documentation in the accommodation process, noting that employers are within their rights to request sufficient evidence to support accommodation requests.
“Employers need to understand the limitations that the disability presents and how they can reasonably accommodate those in the workplace,” Brown said. “But they also need accurate and timely information from the employee or their healthcare provider to make those determinations.”
In this situation, the delay in providing detailed medical information contributed to the Tribunal’s decision, as it found that the medical information available to the employer at the time of the employee’s termination did not indicate the need for accommodation, and the union’s subsequent actions were based on this information.
Communication is key with mental health conditions
A main aspect of the employee’s claim involved the manner in which the union representative communicated with her during the course of the grievance process; in one instance, a letter from the union representative to the employee stated “Accommodation is not a word to use as a ‘get out of jail free card’ when being disciplined for legitimate misconduct.”
The Tribunal acknowledged the representative’s communication style was at times “direct” and “curt”, but concluded that “direct communication on its own is not discrimination,” a point that Brown also emphasized.
“There’s a difference between being direct and being discriminatory,” Brown says. “While the communication style may have been perceived as harsh, the Tribunal found that it did not constitute adverse treatment.”
He added that while sensitivity in communication is essential, especially when dealing with individuals with disabilities, the legal threshold for discrimination is higher: “The Tribunal is careful not to use a subjective measure—whether a comment was offensive to the individual—but rather whether the comment or action constitutes discrimination under the law,” he said.
Building a supportive workplace culture
Creating an environment where employees feel comfortable disclosing mental health conditions without fear of judgment is critical for effective accommodation practices, Brown says.
To combat this, Brown highlights the role of policies that promote diversity, equity, and inclusion, as well as those that clearly define the duty to accommodate. These policies can help create “pathways” for employees to disclose their conditions, he says, and seek the necessary accommodations without fear of reprisal.
Brown also points to Employee and Family Assistance Programs (EFAPs) as valuable resources for both employees and employers, as well as disability providers that can serve as intermediaries, handling sensitive medical information and communicating the necessary accommodations to employers.
“If someone has been cleared to return to work after a disability leave, the disability provider can manage the flow of medical information, ensuring that the employer knows what accommodations are necessary without handling sensitive details directly,” Brown explains.
Monitoring employee behavior and addressing potential issues early on is another key strategy. Brown suggests that managers and HR professionals be attuned to changes in behavior that may indicate an underlying issue, and advocates for what he calls a “fireside chat”—a straightforward, yet supportive conversation where the manager lays out observed behaviors and invites the employee to share any relevant information that might require accommodation.
“Managers and human resources personnel should really kind of keep their ear to the ground when it when it comes to looking at behaviors and trends with staff,” Brown says.
“If someone is unwell or showing a new pattern of problematic behavior, it’s important to address it before it escalates.”
