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:
“I agree that in order to meet the definition of mental disability within the meaning and protection of the Code, where the case does not involve an allegation of discrimination on the basis of perceived disability, there needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance.”
This definition of a mental disability has been applied not only by subsequent decisions of the Tribunal by also by the Ontario Superior Court in Simcoe Condominium Corporation No. 89 v Dominelli, 2015 ONSC 3661. The Federal Court of Appeal in Canada (Attorney General) v. Gatien, 2016 FCA 3 also recently referred to the relevant paragraphs of Crowley in the context of defining a mental disability.
In Crowley the Tribunal also reviewed examples of complaints of mental distress that have been found not to prove a disability including the following:
- a bare assertion of pain, anxiety or depression;
- stress, by itself, is not a disability;
- general references to “personal and health issues”, or “psychological problems”; and
- a one-line doctor’s note stating the employee will be off work for a short period of time.
Although an employee’s complaints of pain, anxiety or depression may not automatically trigger an employer’s duty to accommodate, employers should be aware that these complaints may trigger the employer’s duty to inquire. An employer cannot turn a blind eye to situations where the employee is clearly unwell or perceived as having a mental health concern.
Moreover, an employer who dismisses an employee after being told by the employee that he or she suffers from pain, anxiety or depression may be at risk of being found to have discriminated against employee based on “perceived” disability in breach of the Code, even if the employee is unable to prove the existence of an actual disability.
Employers should respond in good faith to an employee’s requests for accommodation for mental illness. However, if it is unclear whether the employee’s illness rises to the level of a disability the employer is entitled to ask the employee to provide sufficient documentation to establish that he or she has a disability. Instead of accepting a one-line doctor’s note the employer may, as an example, ask the employee’s doctor to confirm that the employee’s medical condition meets the definition of a disability as set out in Crowley. The employer would not ask the doctor to provide a diagnosis of the employee’s medical condition. Once the employee establishes the existence of a disability the employer would take the steps necessary to accommodate the employee’s disability to the point of undue hardship.