Accommodating the needs of persons with disabilities is one of the most common human rights issues in the workplace. While the principles and concepts described above also apply here, this section highlights specific issues that employers may face when responding to requests for accommodation made by employees with disabilities.
a) General principles
Section 17 of the Code provides that people with disabilities have the right to have their individual needs accommodated short of undue hardship, to allow them to perform the essential duties of their job. Where a person cannot perform the essential duties, even with accommodation, or where accommodation would amount to undue hardship, a decision not to employ the person would not be discriminatory. Once employers are aware of employee needs, they must take steps to meet the duty to accommodate.
b) Identify essential duties and provide accommodation
The first step is to separate essential from nonessential job duties. See Section IV-2b) – “Identify and clearly describe essential requirements” for more information about essential job duties. If the person cannot carry out the non-essential job duties, he or she must be accommodated to do so, or these duties must be re-assigned. Accommodation must be provided to enable a person with a disability to perform the essential duties of the job, to the point of undue hardship.
Do not reach conclusions about inability to perform essential duties without actually testing the person’s ability. It is not enough to assume that the person cannot perform an essential requirement. Instead, there must be an objective determination of that fact.
Example: An employee who works in a copy shop has limited arm movement due to a shoulder injury. The employee’s job is to operate the copying equipment to fill customers’ orders. Various types of copy paper are delivered by truck every week and need to be stacked and stored. Operating the copy equipment to fill orders would be an essential duty. Lifting, stacking and storing the weekly paper order is less likely to be an essential duty, since the paper delivery could be moved to a different time in the week and/or the stacking duties could be assigned to a co-worker.
If essential duties cannot be performed in different ways, the employer must explore other accommodation resources that may enable the person to do the essential duties. This accommodation may include adjusting the performance standard as long as doing so does not result in undue hardship.
c) Non-evident disabilities
The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities they are unaware of. However, some people may not be able to disclose or communicate their needs because of the nature of their disability. In such cases, employers should try to help a person who is clearly unwell or perceived to have a disability, by offering help and accommodation. This is very important if an employee is suspected of having a mental illness. On the other hand, employers are not expected to diagnose illness or "second-guess" the health status of an employee.
Example: An employer is not aware of an employee's drug addiction, but perceives that a disability might exist. The employer sees that the employee is having difficulty performing, and is showing signs of distress. If the employer imposes serious sanctions or fires the employee for poor performance, without any progressive performance management and attempts to accommodate, these actions may be found to have violated the Code.
d) How much medical information is an employer entitled to?
Everyone is required to take part co-operatively in the accommodation process. The employer must accept accommodation requests in good faith unless there are legitimate reasons for acting otherwise. The employee must answer questions or provide information about relevant restrictions. Employers should limit requests for information to those reasonably related to the nature of limitation or restriction, to respond to accommodation requests. See also Section IV-8c) – “Overview of duties and responsibilities.”
The purpose of the questions must be carefully considered and be limited to the information that is reasonably required to assess needs and make the accommodation. The amount of information needed will depend on the circumstances. For example, it may be appropriate to ask for more information on a first absence after a sudden unexpected departure, than in the case of an absence related to an existing and known disability where the employer has already received medical information. Do not ask generally for “medical information” about the employee or for a copy of the employee’s medical file.
Ideally, the employer will clearly identify what information is needed and why. For example, the employer could provide a list of questions for the doctor to answer:
- Must Susan be totally off work for six weeks, or is there some way she can continue to work with accommodation such as part-time work, flex hours, working from home, job modification, or workspace modification?
- Can Susan take part in a gradual return to work program? If so, when and how?
- Here is a physical demands analysis. Please indicate what, if anything Susan can continue to do.
Do not design the questions in such a way that the answers will reveal the person’s diagnosis. For example, an employer can ask whether accommodation is needed related to any side effects of prescribed medication, but should not ask what medications the person has been prescribed. This could, in some cases, reveal the diagnosis and is not necessary for accommodation. If the doctor provides a diagnosis or information that has not been requested, proceed very carefully and make sure that any decisions made relate to restrictions and accommodation needs rather than assumptions based on the diagnosis or other information provided.
The employer should then accept the information provided and make the accommodation. If the doctor’s note is not clear or detailed enough to allow for this, the employer is expected to make further reasonable inquiries. For example, if a doctor’s note only says that the employee is fit to return to work, follow up to clarify what accommodation, if any, is necessary.
e) Make sure requests for doctor’s notes are reasonable
Policies regarding doctor’s notes must be reasonable and take into account that an employee may not be able to see a doctor on the same day as they are absent. In the past, the Commission has taken the position that a policy of only accepting doctor’s notes dated on the date of the employee’s disability-related absence is discriminatory. There are also some disabilities for which there are no diagnostic tests and that can only be identified through an employee’s self-report, such as chronic fatigue syndrome. In these cases, the value of having an employee obtain a doctor’s note in such cases may be questionable.
Where an employee has provided medical documentation to support future absences, a judicious and consistently applied approach to requesting doctor’s notes for specific absences will serve an employer well. In cases of extended chronic illness, the employer should accept more general notes and should not require a note for each absence. If requests for doctor’s notes are not necessary, are imposed differently depending on the type of disability, or have the effect of prolonging an employee’s absence, such requests may be viewed as discriminatory.
Example: An employee’s doctor fills in a form stating his diagnosis, chronic fatigue syndrome, and that he will need to miss four days of work per month. The employer requires the employee to get a doctor’s note validating each absence before he can return to work. This is discriminatory because a doctor would only be able to repeat the employee’s own views due to the nature of his disability, the requirement is not applied to employees with “mainstream” disabilities, and has the effect of lengthening the employee’s absences.
f) When is it appropriate to ask for a second opinion?
While the employer is entitled to get all the information needed to make the accommodation, it must also accept accommodation requests in good faith and respect the dignity of employees. A request for a second opinion, an opinion from a specialist or an independent medical examination (IME) must be necessary to provide accommodation. Such a request should not be made to refute whether the employee has the disability in the first place or to avoid providing the accommodation.
Example: An employee provides a doctor’s note that asks for accommodation but does not state any particular diagnosis. The employee shows no observable symptoms of illness in the workplace, and the employer suspects that the employee is making up a disability to get more flexibility in her work arrangements. The employer wants to prove this by having the employee take an independent medical examination. Such an approach would not be consistent with the Code.
It is not normally advisable for an employer to second-guess the validity of an employee’s doctor’s advice, only on a suspicion that it is not objective because it is based on the employee’s own perceptions. Avoid challenging a medical note or requiring a second opinion unless there is evidence that the doctor’s recommendations are based on something other than his or her best opinion as to what is needed to make sure the patient recovers.
The legitimacy of a request for more medical information will depend on the information already received. A request for more medical information will be appropriate if there is a reasonable and objective basis for seeing the initial information as inadequate or inaccurate. Examples might be if there appears to be a problem with the degree of expertise or type of expertise of the doctor who provided the initial medical opinion, or if there is some reasonable basis to believe that the employee is not fit to do the job despite the existence of a medical report to the contrary. Document reasons for requesting more medical evidence.
Example: After a serious car accident, an employee is cleared by her doctor to return to work. On more than one occasion, she becomes dizzy at the end of her 12-hour night shift operating a machine and narrowly misses hurting herself. The employer asks for more information from her doctor about possible accommodations. Once again, the doctor’s note indicates that the employee is fit to work and that no accommodation steps are needed. The employer then asks the employee to attend an assessment by a doctor of her choosing, with expertise in workplace accommodations.
If a second opinion or independent medical exam (IME) is warranted, a good approach is to select a doctor who is acceptable to both the employee and the employer, and the union (if there is one) rather than insisting that an employee meet with a doctor that the employer has chosen. Give the employee enough information to understand the purpose of such an examination, who will conduct it and what assessments will be used.
g) How to deal with conflicting medical reports or recommendations
Employers should accept medical reports in good faith. In some cases, there may be conflicting information provided by two medical experts. For example, an employee’s own doctor or specialist’s report may outline different accommodation needs than an independent medical examiner’s report.
Deciding which report to follow will depend on the facts of the particular situation and the following kinds of factors:
- What are the qualifications and degree of expertise of the two experts – which expert has more relevant experience?
- What is the degree of interaction with the employee?
- Were medical conclusions drawn based on lengthy visits over a number of months or was there only a 15-minute assessment?
- What methods were used for the assessment(s)?
- How far apart are the experts’ opinions?
- Do both reports equally respect the dignity and autonomy of the employee?
- What are the consequences of choosing one over the other?
- If there are serious risks associated with a disability, it may be better to go with the “safer” accommodation. For example, one expert says the employee may have a heart attack if accommodation is not made and the other says accommodation is not necessary. It may be prudent to rely on the first opinion.
- What are the employee’s views about the accuracy of each of the opinions based on his or her own lived experience of the disability?
h) Considerations when contacting an employee on leave
Employers are entitled to contact employees on leave if it is reasonably required. For example, contact may be needed to assess accommodation requirements, the length of absence, changes in the prognosis or to find out whether there may be a potential return to work date. If an employee is off work for an “undetermined” amount of time, the employer can contact the employee after a reasonable length of time (for example, every 3 – 6 months) to see if the prognosis has changed and whether a return to work date has been identified.
Contacts could be used to show the employee that they are missed and valued by the organization. Such contacts may show the employee that they continue to be a part of the organization and could help with a smooth return to work. On the other hand, repeated contacts requesting information, saying that the workplace needs the employee, or asking for a premature return to work (whether implicit or explicit), especially over a short period of time, may constitute harassment.
Ideally, if possible, employers should identify early on how often and how the employee wants to be contacted. This may depend on the nature of leave requirement. For example, an employer might be asked not to contact an employee who is off due to work-related clinical depression and wants to keep this private, but may be asked to keep in touch regularly with an employee who is off for cancer treatment and wants to know about workplace events. Stigma and stereotypes, for example relating to mental illness, should not play a factor in decisions about how often to contact an employee.
In determining whether to contact an employee on leave, consider the following factors:
- What is the nature and length of the disability leave?
- What level of contact has the employee asked for?
- How much time had passed since the last contact?
- What is the reason for the contact?
- Is more information really needed or has enough information already been provided?
- How would a reasonable person view a further contact in light of the information above?
i) Return to work after an extended absence due to disability
Accommodation is a fundamental and integral part of the right to equal treatment in returning to work. Both employers and unions must co-operate in accommodating employees who are returning to work after a disability-related absence. Occupational Health and Safety committees, which include representatives of both management and labour, can help work out individual accommodations for employees with disabilities who are returning to the workplace.
Section 17 of the Code states that the right to return to work for persons with disabilities only exists if the worker can fulfill the essential job duties after accommodation short of undue hardship. If a person cannot do the essential job duties, despite the employer's effort to accommodate short of undue hardship, there is no right to return to work. This right under the Code applies regardless of the size of the workplace or the length of time the employee has worked for the company. This is different from the corresponding provisions in the Workplace Safety and Insurance Act. See also Section II-2b) – “Supremacy of the Code” and Appendix B – “Human rights in the workplace: which laws?”
For disability leave, there is no fixed rule about how long an employee with a disability may be absent before the duty to accommodate has been met. This depends on the ability of the employee to perform the essential job duties, considering the unique circumstances of every absence and the nature of the employee’s condition. Also important are the predictability of absence, both in terms of when it will end and if it may recur, and the frequency of the absence. The employee’s prognosis and length of absence are also important considerations. It is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence.
The duty to accommodate does not necessarily guarantee a limitless right to return to work. On the other hand, a return to work program that relies on arbitrarily selected cut-offs or requires an inflexible return date may be challenged as a violation of the Code.
While an employer may be anxious to have an employee return to his or her job as soon as possible, forcing an employee to return too soon can jeopardize the successful re-integration of that employee into the workplace.
Example: An employee is told that his long-term disability benefits are ending as he has been assessed by the insurer’s doctors as being able to work. Despite medical documentation from the employee’s doctors showing otherwise, he is pushed back to work. This aggravates his medical condition leading to a patchy attendance record, and setting in motion a discriminatory sequence of events ending in his termination from employment.
j) Alternative work
The term "alternative work" means different work or work that does not necessarily involve similar skills, responsibilities and compensation. Although accommodation in the pre-disability job is always preferable, it may not always be possible. The Commission has taken the position that accommodation in a job other than the pre-disability job may be appropriate in some cases.
Consider the following questions:
- Is alternative work possible and available now or in the near future?
- If it is not available, can a new position be created without causing undue hardship?
- Does it require additional training and does the training impose undue hardship?
- Does the alternative work policy contravene the collective agreement?
- What are the terms of the collective agreement or individual contract of employment?
- What are the past practices of the workplace?
- How interchangeable are workers? Do employees often change positions either permanently or temporarily for reasons other than accommodating disability?
Alternative work may be either temporary or permanent:
- Temporary Alternative Work: This may be appropriate either for a return to work or where a disability leaves an employee temporarily unable to perform the pre-disability job. This can also be an appropriate accommodation where the nature of the employee’s disability and its limitations are temporary or episodic.
- Permanent Alternative Work: As outlined above, permanent assignment to alternative work may be appropriate in some cases. Reassignment to a vacant job should be considered an appropriate accommodation only when accommodation in the current job would cause undue hardship. The vacant position must be vacant within a reasonable amount of time. The employer does not have to "promote" the employee. If reassignment creates a conflict because of a collective agreement, accommodation needs should prevail over the collective agreement. When reassignment takes place, the person must be qualified for the reassigned position. The vacant position must be equivalent to the current position. If no equivalent one exists, a lower position would be acceptable. Reassignment is not available to job applicants.
k) On-the-job drug and alcohol testing
i) May be allowed in certain circumstances:
The Code's definition of “disability” includes physical, psychological and mental conditions. Severe substance abuse, such as alcoholism and the abuse of legal and illicit drugs, is classified as a form of substance dependence and is a disability within the meaning of the Code. When a person's use of drugs or alcohol reaches the stage of severe abuse, addiction or dependency there may be significant impairment or distress.
When a person, including a recreational alcohol or drug user, is perceived to have an addiction or dependency on drugs or alcohol, the Code operates to protect that person in the workplace. The person who had a drug or alcohol problem in the past but no longer suffers from an ongoing disability is also protected.
The Commission's position is that pre-employment drug and alcohol testing is generally not permitted. However, the Ontario Divisional Court has held there was no breach of the Code where an offer of safety-sensitive employment was made conditional on passing a urinalysis drug test, and the employer's policy did not provide for automatic termination on a positive drug test, but instead allowed for accommodation to the point of undue hardship. See also Section IV-6d) – “Pre-employment drug and alcohol testing.”
Drug and alcohol testing on the job may be justifiable in certain cases. To decide whether testing is necessary, consider the following questions:
- Is there an objective basis for believing that job performance would be impaired by drug or alcohol dependency? In other words, is there a rational connection between testing and job performance?
- Is there an objective basis for believing that a specific employee’s unscheduled or recurring absences from work, or habitual lateness, or inappropriate or erratic behaviour at work are related to alcoholism or drug addiction/dependency?
- Is there reason to believe that the degree, nature, scope and probability of risk resulting from alcohol or drug dependency will adversely affect the safety of other people?
Drug and alcohol testing that is not related to job performance has been found to violate employee rights. Therefore, policies on drug and alcohol testing must not arbitrarily target groups of employees.
Example: An employer requires only new or returning employees to be tested. This might not be justifiable in terms of the stated objectives of the testing policy.
As drug tests by means of urinalysis do not actually measure impairment but rather simply show the presence of drugs in the body, random drug testing of employees by urinalysis is an unjustifiable intrusion into the rights of the individual. Further, even random drug testing of oral fluid, which arguably does a better job of measuring current impairment from drugs, has been found to violate the terms of a collective agreement. As an Ontario arbitrator recently held, "Arbitrators have concluded that to subject employees to an alcohol or drug test when there is no reasonable cause to do so, or in the absence of an accident or near miss and outside of the context of a rehabilitation plan for an employee with an acknowledged problem, is an unjustified affront to the dignity and privacy of employees which falls beyond the balancing of any legitimate employer interest, including deterrence and the enforcement of safe practices.” 
In the case of random alcohol testing, the use of breathalysers is a minimally intrusive yet highly accurate measure of both consumption and actual impairment. As a result, the Commission supports the view that random alcohol testing is acceptable in safety sensitive positions, especially where staff supervision is minimal or non-existent, but only if the employer meets its duty to accommodate the needs of people who test positive.
“For cause” and “post-incident” testing for either alcohol or drugs may be acceptable in specific cases. For example, after accidents or reports of dangerous behaviour, an employer will have a legitimate interest in assessing whether the employee in question had consumed substances that may have contributed to the incident. The results of the assessment may explain the cause of the accident. Such testing should only be conducted as part of a larger assessment of drug or alcohol abuse (for example, employee assistance programs (EAP), direct medical assessment and peer and supervisor reviews).
Employers who have determined the need for on-the-job testing should consider the following when developing on-the-job testing criteria:
- Have arrangements been made for competent handling of test samples? Qualified professionals must perform drug and alcohol testing and a competent laboratory must analyze the results. As well, the employer must make sure the samples taken are properly labelled and protected at all times.
- Are the test results kept confidential? To protect the confidentiality of test results, all health assessment information should stay with the examining physician and away from the employee's personnel file.
- Have the test results been reviewed with the employee? Procedures should be put in place for the doctor to review the test results with the employee concerned.
- Where mandatory self-disclosure is part of the policy, have reasonable time periods been included? Where mandatory self-disclosure is a part of a workplace drug or alcohol policy, there must be a reasonable time period within which previous substance abuse will be considered relevant to assessing current ability to perform the essential duties. The reasonable time period is based on whether the risk of relapse or recurrence is greater than the risk that a member of the general population will suffer a substance abuse problem. Mandatory self-disclosure of all previous substance dependencies, without any reasonable limitation on how long ago these conditions took place, has been found to be a prima facie violation of employee rights.
- Have alternative methods such as functional performance testing been used? The Commission encourages employers to use methods other than drug and alcohol testing (for example, functional performance testing) where such methods exist, or develop such tests, where feasible, to assess impairment. The Commission also encourages employers to develop and put in place EAPs and peer monitoring.
ii) Duty to accommodate:
Where an employee tests positive, the Code requires individualized or personalized accommodation measures. Therefore, policies that result in automatic loss of employment or reassignment or that impose inflexible reinstatement conditions without regard for personal and individual circumstances are not likely to meet this requirement.
iii) The employee must co-operate with the employer:
A person who needs accommodation to perform essential job duties must make his or her needs known in enough detail and must co-operate enough to enable the person responsible to respond to the request. However, this obligation does not eliminate the employer's obligation to treat the person equally even if the employer believes or perceives (even with good reason) that the employee has a substance abuse problem.
Example: An employee in a clerical position appears to be inebriated frequently in work hours, and the employer has a conversation with him to address the problem. The employee refuses to acknowledge the problem or seek counselling at the employer's expense. Shortly after, the employee is fired without formal warning.
In this case, the employer clearly “perceived” the person to have a substance abuse problem, and therefore the protection of the Code is engaged. The fact that a person refuses treatment or accommodation does not by itself justify immediate dismissal. The employer has to show, through progressive discipline, that the employee has been warned and is unable to perform the essential job duties. If the employee refuses offered accommodation and if progressive discipline and performance management have been implemented, then disciplinary steps can be taken.
An employer must provide the support needed for an employee with a drug or alcohol addiction/dependency to take part in a rehabilitation program, unless providing such accommodation would cause undue hardship. If there are objective health and safety risks associated with an employee’s presence in the workplace, an employer may give the employee a paid leave to explore treatment options.
iv) Alternative programs:
Employers are encouraged to consider setting up such alternatives as an employee assistance program (EAP), including offsite counselling and referral services. These can be helpful, both for persons with drug or alcohol addiction/dependency, and for helping employees cope with stresses that may lead to an addiction or dependency. See also Section IV-8e(viii) – “Stress-related accommodation requests.” Other alternatives include performance tests for safetysensitive positions where physical and/or mental coordination are essential.
v) Last chance agreements:
Last chance agreements are often put in place where an employee has a substance addiction and is returning to work after attending a rehabilitation program. A common element of such an agreement is that it says that employment can be terminated if there is a further relapse. This kind of agreement raises human rights concerns from a number of perspectives.
Employers should make sure that attempts to have employees enter into a last chance agreement do not amount to coercion or duress, as this could be a form of disability-related harassment or discrimination. Some last chance agreements may require the employee to waive any rights under human rights legislation if they breach the agreement. This type of provision could be viewed as a form of contracting out of the provisions in the Code that is not allowed. For more information about this issue, refer to Section IV-12e) – “Considerations when settling complaints internally.”
Even if all parties in a workplace, employer, union and employee, have agreed to the terms of a last chance agreement, this does not relieve the employer and union from fulfilling the Code’s duty to accommodate to the point of undue hardship. The fact that an employee has not upheld his or her end of a last chance agreement is not necessarily a “green light” for termination. The employer or union would need to be sure that providing further accommodation would amount to undue hardship relating to costs, outside sources of funding and health and safety. This assessment must be done on a case-by-case basis.
l) Harassment because of disability-related accommodation
The courts have clearly stated that when providing on-the-job accommodations, employees with disabilities must be treated with dignity and respect. Employees with disabilities have a right to be free from harassment. This precludes name calling and other vexatious comments, and also prohibits employers from imposing onerous or arbitrary requirements on an employee with a disability.
Example: An employee provides documentation about his disability, and yet faces a number of obstacles related to his requests for accommodation. The employer scrutinizes him for his disability-related conduct.
m) Mental illnesses in the workplace
Mental disabilities, such as depression or schizophrenia, pose particular challenges for employers. Employees may be reluctant to seek a diagnosis and treatment or accommodation in the workplace due to stigma. Also, discrimination in the workplace may, in some cases, make existing mental illnesses worse or lead to mental disabilities such as depression or post-traumatic stress disorder.
As rates of mental illness increase worldwide, the impact of mental illnesses in the workplace is also growing. For example, the World Health Organization estimates that by 2020, depression will be the second-most common cause of disability in the world, after heart disease. Despite this, mental illness still continues to be a taboo subject in society and in many workplaces. In this environment of silence and discomfort, stereotypes flourish unchecked and employees with mental illnesses are exposed to extreme levels of stigma and irrational fear. Employees with mental health issues often find themselves isolated and marginalized in the workplace – impacts that may be made worse by racial and cultural barriers.
People with mental illnesses have the right to be employed and to receive accommodation in the workplace to the point of undue hardship. Unfortunately, it is not uncommon for employees with mental disabilities to be unlawfully excluded from a hiring process, treated differently in the workplace or terminated from employment when they make a request for accommodation.
This is not acceptable. Under the Code, the employer must go through the same process of finding appropriate accommodation and assessing undue hardship for an employee with a mental illness as it would for an employee with any other kind of disability. A recent Ontario tribunal decision, Lane v. ADGA Group Consultants Inc makes it clear that employers who do not properly accommodate the needs of employees with mental illness contravene the Code and are liable for significant damages.
i) Case Study – How not to treat an employee with a mental illness:
Once he was hired, Mr. Lane told his employer of his need for accommodation and made suggestions: that his behaviour should be monitored and that if it appeared that he was going into a pre-manic phase, he might need a short time off to recover so he would not have a full manic episode (which would require him to be off for much longer). Based on the response received, he felt he had made a mistake by disclosing this information.
Soon afterwards, the employer noted some behaviours linked to his disability as Mr. Lane was going into a pre-manic phase. Relying on stereotypes and assumptions, they leapt to the conclusion that he could not do his job, which required stability and reliability. The employer did not have any accommodation policies or procedures in place and did not assess whether it could accommodate Mr. Lane. Even if he could not be in the workplace for legitimate reasons, they didn't consider options like placing Mr. Lane on a leave while sorting out whether they could accommodate him in his position without undue hardship.
Instead, the employer fired Mr. Lane eight days into his probationary period. No one called Mr. Lane’s wife or doctor to provide support even though there were indications that he was likely in a pre-manic phase. This contributed to serious consequences – Mr. Lane developed full blown mania and depression, was hospitalized on a couple of occasions, separated from his wife (and daughter) and lost his home.
The complainant was awarded $80,000 (including $10,000 for mental anguish), and the employer was required to establish a comprehensive anti-discrimination policy and hire a consultant to provide training.
ii) Tips for respecting the rights of employees with mental disabilities:
- Include input of staff and/or mental health organizations in setting organizational policy.
- Any policies developed should take into account the lived reality of people who have experienced mental health issues in the workplace.
- Remember that an employee with a mental disability is valued and can continue to contribute to the workplace.
- Focus on the person’s strength, resiliency, accomplishments, and views about what he or she needs.
- Look at individual circumstances and don't rely on stereotypes.
- Recognize and take steps to alleviate stigma and vulnerability of an employee with a mental disability.
- Treat the employee the same way as employees with other kinds of disabilities, such as heart problems.
- Communicate professionally and responsibly as would be done for employees without mental illness.
- Maintain confidentiality.
- Have an open dialogue with the employee.
- Consider the employee's views on what will work for him or her.
- Find out how employee views things in the future and what they see the employer's role to be.
- Take instructions from the person, not third parties who claim to represent their best interests (unless there is a power of attorney).
- Make sure communications are clear if the employee has diagnosed or undiagnosed mental health issues.
- Be careful not to use language that implies negative judgements about the employee (both when speaking with the employee and when speaking about him or her to others).
- Inform yourself about accommodation needs.
- Ask for consent and speak with the employee’s doctor about accommodation needs.
- Don't request a diagnosis – focus on accommodation requirements.
- If a doctor provides a diagnosis anyway, follow up and find out what accommodation is necessary.
- Keep in mind that mental illnesses may be misdiagnosed and that people with mental disabilities are stigmatized.
- Don't focus on labels.
- Don’t leap to the conclusion that undue hardship exists.
- Follow the same process as for employees with other disabilities.
- Assess health and safety risks based on objective evidence following implementation of accommodation.
- Make sure decisions are not being made based on stereotypes that people with mental illness are dangerous or violent.
- Look at the big picture
- Try to understand barriers, such as systemic racism, experienced by the employee that are aggravated by mental illness.
- Get information about community resources and supports.
- Work in a team to support the employee.
- Find out about the employee's personal support system, especially if employee is not able to fully participate in accommodation planning.
- Show a willingness to work together to come up with creative accommodation solutions.
iii) Availability of appropriate mental health services:
Employees with mental disabilities have the right to seek and get health care services targeted to their individual needs. Biased or uninformed assessments of behaviour could lead to culturally appropriate behaviour being misinterpreted as a sign of mental illness. For example, an employee may be guarded about providing personal information for reasons linked to trauma experienced in his place of origin, but this could be misinterpreted as a symptom of mental illness, such as paranoia.
However, a reality is that there may not be enough service providers and health care practitioners in the region to help persons with mental health issues in languages other than English or French. This may be a barrier to an employee getting an accurate diagnosis and treatment in a timely way. An employer would need to take into account an employee’s efforts to get appropriate services before concluding that an employee is not taking part in the accommodation process.
Example: An employer asks an employee with a mental disability to attend a medical examination to identify accommodation requirements. The employee, a permanent resident from Sri Lanka, has difficulty finding a doctor, psychiatrist or psychologist who can assess him in his native language. While the employee is on the waiting list for such services, the employer provides interim accommodation based on information provided by the employee and a community organization that is assisting him. The employer relieves stress on the employee by affirming the employee's right to choose a culturally appropriate assessment and by confirming that it will wait until this can be obtained.
iv) How to support an employee’s return to work after disability leave for a mental health problem:
To successfully support the return to work of an employee with a mental illness, Mental Health Works suggests that three fundamentals be in place:
- The work itself, and the employee’s presence in the workplace, should not pose a risk to the employee or co-workers.
- The employee must be able to perform the tasks of his or her job at a level where meaningful work is possible with appropriate accommodations.
- The workplace must be welcoming and free from harassment and other pressures that might delay recovery.
To evaluate these, Mental Health Works recommends that an employer look at the demands of the job, and at the employee’s progress, including:
- The employee’s symptoms, and the severity of those symptoms
- The effectiveness of treatment
- The employee’s resilience
- The employee’s ability to prevent a relapse (by identifying and avoiding issues that lead to relapses)
- The level of mental acuity and stamina the job requires.
As with other forms of disability accommodation, an employer is expected to first consult with the employee and to also seek input, where necessary, from his or her doctors and community resources. For more practical suggestions on reintegrating an employee into the workplace after a mental health absence, refer to the Mental Health Works website at www.mentalhealthworks.ca.
v) Compliance with medical treatments:
An employee’s ability to cope at work may depend on his or her compliance with a medical regime. However, an employer should be wary about acting based only on an assumption that an employee has been non-compliant or may not respond well to treatments for mental illness.
Example: An employee provides a doctor’s note that indicates that she has schizophrenia, and that she does not need any accommodation as her medical treatment has been effective to date. The employer had suspected that the employee might have depression and is shocked to hear the diagnosis (the employer is not normally entitled to know the diagnosis). The employer decides that the company cannot take the risk that the employee might not take her medicine and lets her go. This decision would likely prove to be problematic for the employer, as there was no basis to think the employee would not take her medicine, nor was there any information to suggest that there were health and safety risks to justify termination.
Example: An employer notices that an employee’s work performance is slipping. The employer writes a letter stating that it appears that he has not taken his medication and that he should not report to work until he is prepared to do so. The employer has not met its duty to accommodate.
Example: An employer notices that an employee’s work performance is slipping. The employer speaks with the employee and, with his consent, contacts his doctor to find out what accommodation needs to be provided in both the short-term and the long-term. This employer is off to a good start.
vi) Act to overcome stigma and harassment:
An employer is also expected to take steps to ensure that the stigma associated with mental illness does not give rise to human rights violations. For example, discriminatory attitudes of other employees should not prevent the successful accommodation of an employee with a mental disability, nor should they be allowed to give rise to harassment or a poisoned environment. See also Section IV-12a(iv) – “Mobbing and Bullying.”
Example: To accommodate an employee’s mental disability, an employer bundles together tasks and creates a new position in another unit. The other employees in this unit have heard this employee has a mental illness and say they are scared to work with her. The employer does not back down from implementing the most appropriate accommodation because of the discriminatory stereotypes and fears initially expressed by other staff. The employer gives them training about the duty to accommodate and the Code’s protections against harassment and a poisoned environment. The employer takes steps to respond to any remaining concerns while maintaining confidentiality. The employer makes it clear that further discriminatory comment or conduct may lead to discipline. The situation is closely monitored.
vii) Objectively assess alleged health and safety risks:
Where other employees claim that an employee with a mental disability poses a health and safety risk, the employer should make sure that it is able to meet the test for undue hardship before taking any action. This means that there must be objective evidence of actual risk after accommodation has been provided. Health and safety risks must not be presumed based on the stereotype that persons with mental disabilities are violent or dangerous. Without medical or other expert evidence, it would be difficult for an employer to show that the risks cannot be reduced through accommodation. When assessing risks based on medical evidence, employers should not jump to conclusions based on a diagnosis if one is provided.
viii) Performance managing an employee who is suspected to have a mental health problem:
An employee with a mental health problem or disability can be successful in work given appropriate support and accommodation. While the employer is entitled to manage performance of its employees, it is to the employer’s advantage to do this in a way that maintains an employee’s self-esteem and encourages wellness. Mental Health Works suggests a collaborative approach to coaching distressed employees:
- acknowledge the strengths that the employee brings to the team and the workplace – this sets the tone for discussions about performance
- be clear about the changes in performance and their impacts on the organization – the employee must know what is expected
- collaborate with the employee to set goals, objectives and timeframes
- regularly monitor the situation and evaluate progress, including by employee self-assessment, and be clear about consequences for any performance issues that remain
- recognize and encourage the employee when goals are met, and hold the employee accountable when they are not
- both employee and manager should be involved in determining next steps when goals have not been met.
When dealing with employees who may have mental illness, employers should make sure that these employees understand the options available and the implications of any decisions they are making, in particular relating to layoffs or terminations. Employers should also be wary about rushing to terminate based on medical documentation without exploring accommodation alternatives.
Example: An employee is acting strangely and the employer asks for a medical assessment. The doctor says that the employee is experiencing psychotic episodes. Based only on this information, the employer warns other employees to be on the alert and gives him two weeks notice of termination indicating that the employee poses a health and safety risk. The employer has not assessed the extent of any risks that may exist, has not offered or explored accommodation and may be seen to have poisoned the person’s work environment.
ix) More help for employers dealing with mental health situations:
In the Commission’s experience, employers struggle with mental health situations more than any other situation of workplace accommodation of Code-needs. The Commission recommends that employers who suspect or are aware of an employee’s mental illness and are unsure about how to proceed with accommodation consult Mental Health Works. Their website address is www.www.mentalhealthworks.ca.
Mental Health Works is an organization whose mandate is to help organizations manage their duty to accommodate employees experiencing mental disabilities such as depression or anxiety in the workplace. They provide services to organizations, including workshops and presentations, and their website is an excellent online resource to help employers prevent mental health problems and support employees with mental illness. Guidance is provided on how to discuss work performance issues when an employee is suspected of having a mental illness, ways to accommodate an employee with a mental illness and how to successfully reintegrate an employee who has been on a leave as a result of a mental health problem. The website also offers a self-assessment tool called an “emotional wellness survey,” mental health fact sheets and information for employees.
n) Environmental sensitivities and nut allergies
An emerging issue in many workplaces involves accommodating the needs of employees with environmental sensitivities and serious allergies, for example to nuts. The Commission has previously stated that these may be considered disabilities. For example, if a person with asthma, environmental sensitivity or allergies found themselves disadvantaged in the workplace as a result, that person could be considered a person with a disability under the Code. Employers may therefore have a duty to accommodate these kinds of needs.
This may include limiting, where possible, opportunities for workplace exposure to common substances that trigger asthma or allergies. For example, an employer may institute a “scent-sensitive” or “scent-free” workplace policy or designate the workplace as a “peanut-free zone.” Depending on the workplace and the particular situation of the persons in question, there may be other appropriate accommodations. An accommodation will be appropriate to the extent that it respects the dignity of a person with a disability, takes into account individual needs, and promotes integration and inclusion of persons with disabilities. The Canadian Human Rights Commission has recently posted materials on environmental sensitivities on their website at www.chrc-ccdp.ca.
o) Learning disabilities
The Learning Disabilities Association of Ontario (LDAO) states that as many as 10% of people in Ontario have learning disabilities. These are invisible disabilities that affect how people process information. In the workplace, they may affect an employee’s visual, auditory or organizational abilities. There is a range of accommodation steps that can be put in place to help people with learning disabilities contribute fully to the workplace.
For example, LDAO lists the following steps that can be taken:
- give written material or a tape recording to employees who have difficulty processing what they hear
- give extra time and voice-recognition software to employees who have trouble writing
- break down tasks into smaller parts and give guidance on time frames for employees with difficulties organizing information.
LDAO is included in the list of resources in Appendix C.
 Ontario Human Rights Commission, “Human Rights Settlements Reached with Ontario Gaming and Lottery Corporation on Disability Policy,” online: www.ohrc.on.ca/en/resources/news/olg_settlement.
 Keays, supra note 52 (overturned on appeal to the Supreme Court of Canada).
 Ibid. (overturned on appeal to the Supreme Court of Canada). In that case the Court found that the note policy was a part of a specific program designed to accommodate disabled employees.
 Note however: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal,  1 S.C.R. 161 finding that an employer is not required to keep a job open indefinitely for an employee who may remain disabled for an indeterminate period.
 Weyerhaeuser v. Ontario Human Rights Commission,  O.J. No. 640 (Div. Ct.), leave to appeal refused (August 21, 2007) (unreported) Court of Appeal File No. M34351.
 Imperial Oil v. Communications, Energy and Paperworkers Union of Canada, Local 900  O.L.A.A. No. 721 (per Arbitrator Picher).
 Entrop, supra note 6.
 Moore v. Canada (Attorney General), 2005 CarswellNat 2498, 267 F.T.R. 209 (F.C.); Zettel Manufacturing Ltd. v. CAW-Canada, Local 1524, 2005 CarswellOnt 7877, 140 L.A.C. (4th) 377 (Ont. Arb. Bd.)
 See for example Mental Health Works, “Cubicle bullies: Mobbing at Work,” online: www.mentalhealthworks.ca/articles/mobbing_at_work.asp.
 Lane v ADGA, 2007 HRTO 34 (CanLII) (Lane). At the time of publication, this decision was under appeal.
 Mental Health Works, “Accommodations“, online: www.mentalhealthworks.ca/employers/faq/question11.asp
 Mental Health Works, “Coaching Distressed Employees”, online: www.mentalhealthworks.ca/articles/coaching_distressed_employees.asp.
 For more ideas, see Learning Disabilities Association of Ontario and Ministry of Citizenship and Immigration, “Learning Disabilities on the Job!” (brochure) (Toronto: Queen’s Printer for Ontario, 2004), online: www.ldao.ca/what_helps/helping_at_work.php.