When Does an Employee’s Mental Illness Trigger an Employer’s Duty to Accommodate?
The need to accommodate mental illness in the workplace is rapidly growing. A 2012 Ipsos-Reid poll found that 22% of Canadian workers’ experience depression. Mental illness accounted for 30% of short term disability and long term disability claims in 2010 and 47% of all approved disability claims in federal civil service, double the percentage of 20 years earlier, according to the Mental Health Commission of Canada.
An employee who is disabled as a result of a mental illness is entitled, pursuant to the Ontario Human Rights Code (“Code”), to be accommodated by his or her employer up to the point of undue hardship. However, the employee is only entitled to the protections of the Code if the employee is able to prove that his or her mental illness is sufficiently serious to be considered to be a disability. The employer has no legal obligation to accommodate the employee if the employee’s mental illness does not rise to the level of a disability.
The most widely accepted definition of a mental disability that will trigger the protection of the Code was set out by Vice Chair Mark Hart in Crowley v. LCBO, 2011 HRTO 1429. In Crowley the Vice Chair wrote at paragraph 63:| | | Next → |