Williams HR Law LLP

Return to Work Case Studies from the Front Lines – Case Study #1

July 14, 2020

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Unravelling Work Refusals: When Employer Mental Health Accommodation Obligations May Arise

This is the first post of our new blog series, Return to Work Case Studies from the Front Lines, which draws from our experiences working with employers “on the ground” to provide practical insights for organizations as they continue through the return to work process.

Going forward for the next few weeks, we will be blogging about various case studies each Monday. As significant developments were announced yesterday with respect to the extension of the Canada Emergency Wage Subsidy and Stage 3 of Ontario’s reopening plan, we are posting our first case study today, Tuesday, July 14.

As many businesses reopen and most of the province prepares to enter Stage 3, employers should be alert to mental health issues that may lie behind employee work refusals related to fears of COVID-19. As there is a broad spectrum of mental health-related behaviours employees may demonstrate, employers need to be aware of when their accommodation obligations, including the duty to inquire, may be triggered. In properly managing the accommodation process, employers can avoid costly human rights discrimination claims.

The following case study illustrates an example of how mental health needs may underlie an employee’s refusal to return to work, based on a real-world situation we recently assisted a client in the retail industry with. The details of the scenario have been adapted and anonymized.

The Scenario:

  • Daniel had been working from the employer’s retail location since the pandemic began. The employer had taken numerous health and safety precautions for its staff and customers, which included:
    • proactively preparing and consulting with staff on its pandemic response plan; and
    • conducting ongoing thorough risk assessments.
  • Even while operating in the retail industry and dealing with the public, the employer had not experienced significant health and safety concerns as customers and staff were largely diligently following protocols.
  • Daniel’s manager, Heather, also communicated regularly with her staff. During a recent informal staff meeting, Daniel mentioned he was fearful of leaving his house even since the easing of restrictions and leveling of COVID-19 transmission risk, and that it was difficult for him to push himself to get to work for each shift. Daniel mentioned how he had had a panic attack at work, and Heather caught him crying one day at work.
  • Soon after, Daniel informed Heather that he refused to come into work because he was afraid of catching COVID-19 at his job. He stated that he felt it was unsafe for anyone to be at work.
  • Heather asked Daniel for more details about his concerns. After speaking with Daniel to understand the basis of his fears, Heather found that his work refusal was not based on legitimate health and safety concerns of the workplace. Given the general decreasing prevalence of COVID-19 cases in the region and the extensive health and safety measures put in place, Heather thought that Daniel’s fears were irrational.
  • Heather contacted us, and we advised her that her legal duty to inquire into Daniel’s mental health needs had been triggered, particularly in light of Daniel not having a legitimate safety-related work refusal and his behaviour.
  • We also advised Heather that before Daniel returns to work, she should seek appropriate medical information from his doctor to understand any limitations and to assess accommodations he may require based on a mental disability.
How the Employer Met its Legal Obligations How the Employer Could Have Exposed Itself to Liability
  • Proactively took workplace health and safety obligations seriously; conducted thorough risk assessments
  • Involved staff in the consultations and communications regarding a pandemic response plan
  • Maintained regular communication with employees
  • Listened to Daniel’s initial work refusal concerns, and considered his recent behaviour
  • Sought legal counsel, particularly when Daniel’s behaviour was not directly related to a tangible safety-based work refusal and his communications pointed to his mental health condition
  • Proactively inquired into Daniel’s possible mental health-related accommodation needs with sensitively drafted medical letters
  • Had the employer disregarded Daniel’s recent panic attack and crying, it could have failed in its duty to inquire into a potential mental health disability
  • Had the employer disciplined Daniel for his absence, insisted he immediately return to work, and/or dismissed him after it became aware of his mental health challenges, it could have exposed itself to significant liabilities from a possible human rights claim

Key Considerations and Takeaways:

In this case, the employer properly took Daniel’s work refusal in good faith and communicated with him to understand the basis of his concerns but was uncertain what to do in relation to his mental health.

Our client mitigated its human rights exposure by implementing a communication strategy that expressed its willingness to provide reasonable accommodation Daniel may need, with a medical letter to his doctor seeking specific answers to help determine how it may accommodate Daniel.

More broadly, employers should recognize that an employee might not directly state that their work refusal is based on their mental health or that they need accommodations. In our experience, asking whether an employee has accommodation needs and seeking related information from their doctor is particularly important, as was true in this case study. An employer’s duty to inquire into a potential mental health disability can be triggered when it is aware of or reasonably ought to know that an employee may have a mental disability, and some factors could include:

  • Whether the work refusal does not involve a legitimate safety-related concern;
  • The employer’s knowledge of a pre-existing mental health accommodation need (for example, for conditions such as depression, anxiety, or PTSD);
  • Sudden changes in an employee’s communication and behaviour, such as calling in sick more often than usual, crying, or appearing withdrawn, agitated, angry, irritable, etc.; and
  • Any indication that the employee has very heightened fear of engaging in other activities since COVID-19, such as being afraid to go outside long after public health restrictions have loosened.

For employers to proactively identify any of the above factors that may point to their duty to inquire, regular communication with employees is key.

As we always advise our clients, employers should err on the side of caution and request medical information if they are uncertain whether a work refusal is related to a mental health accommodation need. With clear medical letters requesting information about an employee’s limitations, prognosis for recovery, and duration of treatment, employers will be able to pre-empt discrimination claims and liabilities as well as demonstrate sensitivity to the variety of mental health challenges employees may face.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.