Williams HR Law LLP

ONTARIO’S NEW HUMAN RIGHTS COMMISSION POLICY ON MENTAL HEALTH & ADDICTIONS

June 25, 2014

[vc_row][vc_column width=”1/3″][vc_single_image image=”2106″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]The Ontario Human Rights Commission recently released its new “Policy on preventing discrimination based on mental health disabilities and addictions” (the “Policy”).  The Policy is a good reference tool for employers and was created to bring attention to the various forms of discrimination, stigma, and negative treatment that individuals with mental health disabilities and addiction issues can face in employment and other areas.   Although the Policy is not law, the Ontario Human Rights Tribunal and Ontario courts will likely give this Policy deference when considering mental health and/or addiction issues in cases before them.

The Policy summarizes the well-known principles of the duty to accommodate employees to the point of undue hardship.  The emphasis of the Policy is that when it comes to laws around discrimination, mental health disabilities should be treated no differently than physical disabilities.  The Policy restated the oft-cited legal principles that underlie the duty to accommodate as follows:

  • Accommodation of disabled employees must be guided by the principles of respect for dignity, individualization, integration and full participation.
  • The duty to accommodate is a two-step process – it is both substantive (the actual accommodation) and procedural (how the employee’s accommodation needs are assessed).  Failure of either step in the process will be considered a breach of the Human Rights Code.
  • A template accommodation Policy will not be considered sufficient.  Accommodation is an individualized process and each case must be assessed on an individual basis.
  • The employer may have a “duty to inquire” where an employee may not be in a position to request accommodation and the employer observes unusual behaviours or other employees bring issues to the employer’s attention.  In these circumstances, employers may need to make sensitive inquiries and attempt to start the accommodation process while being respectful and mindful of the employee’s right to privacy.
  • An employee must be an active participant in the accommodation process and has a duty to co-operate.  This is because the employee does not have a right to their preferred accommodation, the accommodation should be the most appropriate one.

The Policy also reviews the undue hardship threshold and provides some guidance. In determining what constitutes “undue hardship”, employers are expected to endure a certain degree of difficulty and the hardship has to be real and quantifiable.  Such quantifiable elements include: cost, set sources of funding and health and safety requirements.  Other business considerations such as potential inconvenience, employee morale issues or customer preferences will not be accepted as valid considerations when determining whether the test for undue hardship is met.

Given the increased societal prevalence of mental health issues and its virtual invisibility in the workplace, this Policy provides good insight into how the Human Rights Tribunal and courts expect employers to approach mental health accommodation.  Based on the Policy, it is expected that employers will become informed about their accommodation responsibilities and that they work proactively to create and sustain discrimination-free environments as much as possible.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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