‘We’re probably going to see more anxiety-related issues relating to the workplace’
Mental health and accommodation in the workplace was already a big concern for employers before the pandemic but in a post-COVID world, they will become even more magnified and employers will have to carefully navigate the impacts, says an Edmonton lawyer.
“We’re probably going to see not necessarily new medical conditions that employees are facing but we’re going to have probably an uptick in these sort of diagnoses,” says Dan Bokenfohr, partner at McLennan Ross in Edmonton. “We’re probably going to see more anxiety-related issues or diagnoses relating to workplace issues, the uncertainty of the pandemic, the fear of what coming back to the workplace may mean and ‘Are we out of the woods with the pandemic?’”
Bokenfohr is one of the featured speakers at the upcoming Employment Law Masterclass Alberta virtual event on Sept. 8 and he will be providing visitors with an update on mental health and human rights accommodation in the workplace.
What will be important for companies to recognize is that “generally speaking, any sort of mental health medical condition would be recognized as a mental disability entitled to protection under human rights legislation,” says Bokenfohr, and the ongoing uncertainty will be felt by many employees.
“That includes things like anxiety-related disorders, depression, post-traumatic stress and if you’re faced with an employee who has that medical challenge that they’re dealing with and it’s impacting their work, then employers have a duty to accommodate that disability to the point of undue hardship.”
Once the worker discloses a condition, the employer has certain responsibilities, he says. “If someone needs time off from work to deal with the mental illness and get treatment, then an employer is obligated to allow them to do that and within reason, give them the time they need to get better. If they need modifications to their work, that’s another thing that an employer would have a duty to explore.”
Another area of concern that will trigger an accommodation will be addictions or substance abuse diagnoses, says Bokenfohr.
“We’re going to have those sorts of things appear with more prevalence as people try and get back to what the new normal is, whatever that is.”
When it comes to potential performance issues that may cause an employer to consider dismissal, employers should know that if there is a mental health condition at play, this might be the reason for a change in behaviours, and they should tread carefully.
Dan Bokenfohr
“The employer should hit the pause button on any plans to terminate and should first be going through an accommodation framework: you need to gather more information from the employee and then work with their doctor to find out ‘What’s the nature of the mental illness? And how could it be impacting performance? And is that something that can be accommodated through changes or allowances that gives the person an opportunity to be successful?’” says Bokenfohr.
And write everything down, when it comes to discussions with employees, he says. “You want to make sure that you’ve done due diligence in terms of documenting communicating those reasons effectively to the employees so that there’s not an allegation later on that this relates to the employee having a mental illness. Those sorts of things could result in a human rights complaint.”
If an employer suspects that an employee is suffering from a mental health problem, the duty to inquire must be followed, according to Bokenfohr. “There are some signs that, either there’s expressed knowledge because the employee has made them aware that there’s a disability or in many cases, an employee doesn’t necessarily want to come forward and share this information but an employer, if it’s seeing what are obvious signs of a potential mental illness that is impacting an employee’s performance or their behaviour in the workplace, before they simply usher that employee out, because of work performance or lack of fit, there is a duty to ask those questions to make sure that this isn’t related to a disability and if it is, you’ve looked at the possibility of accommodation.”
“Employers can’t bury their head in the sand and use a policy of don’t ask, don’t tell and then assume that they’re protected by that,” he says.
Recently, Canadian HR Reporter spoke with experts about the new rules around pay equity and asked key questions about vaccines in the workplace.
