Employers have long held the belief that it’s up to the employee to request accommodations for their disability, be it physical or emotional. After all, if they are unaware of a disability, how can they take it into account when leading and managing an employee?
Today, the law in Ontario has evolved: the employer now has the duty to inquire into whether the employee has a psychosocial disability, or an addiction, which may require accommodations. The reasons for this are two-fold: the person with the mental health issue may not be able to identify it, or they may be reluctant to disclose it due to considerable stigma surrounding mental health issues.
In other words, employers cannot turn a blind eye to the employee who is showing signs of mental health concerns. An employer would be well advised to seek legal input before acting on their suspicion of addiction or mental health issues, such as termination or disciplinary action.
“The procedural duty to accommodate indicates that an employer cannot passively wait for an employee to request accommodation where it is aware of facts that indicate that the employee may be having difficulties because of disability; there is a duty to take the initiative to inquire in these circumstances.”
Ontario Human Rights Tribunal,
Sears v. Honda Canada Mfg., 2014 HRTO 45
WHAT EMPLOYERS MAY OBSERVE AS SIGNS OF MENTAL HEALTH STRUGGLES
- Change in appearance (weight loss, lethargy)
- Signs of anger or excessive emotion at work (cursing, crying repeatedly)
- Repeated errors at work or deteriorating performance
- Increased conflict with team members
- Sudden overconfidence
- Suspected alcohol or drug dependence (slurred speech, smell)
- Repeated absences
- Shift in hours worked (excessive overtime, routinely leaving early)
- Personal circumstances that are difficult (death, divorce)
- Lack of concentration, organization, poor memory
- Frequent complaints about pain or illness