The Human Rights Duty to Inquire into Employees’ Mental Health
This week, the Centre for Addiction and Mental Health (CAMH) launched its awareness campaign aimed at addressing mental health in the workplace, and urging corporations to champion this pressing issue. With the release of its Workplace Mental Health Playbook for Business Leaders http://www.camh.ca/en/health-info/workplace-mental-health-playbook-for-business-leaders, CAMH hopes to provide a path to more effective solutions and better outcomes for employees and for businesses. Based on its research, the Centre found that by the age of 40, half of Canadians have – or have had – a mental illness, 30% of disability claims in Canada are due to mental illness, and the cost of disability leave for mental illness is about double the cost of leave dur to physical illness.
One of the many challenges in addressing mental health at work, is the difficult conversations that must take place when the employer suspects that an employee is experiencing mental health struggles. The continuing social stigma associated with mental health issues will often prevent an employee from disclosing her disability, and makes these conversations between the employer and employee difficult to navigate. In its Playbook, CAMH states that “three-quarters of working Canadians say they would either be reluctant to admit or would not admit to a boss or co-worker that they were experiencing a mental illness.” The top reason for such reluctance is fear – of being judged or facing negative consequences, including losing their job.
Additionally, due to the nature of some mental illnesses, an employee may be unable to identify that she has a disability or requires support. The question arises then, if the employee does not speak up and disclose a mental illness, does the employer have a duty to accommodate?
Generally, in order to trigger the duty to accommodate, the disabled employee is expected to inform the employer that she has disability-related needs and cooperate in providing as much information as possible in order to arrive at an appropriate, reasonable and respectful accommodation. However, recent arbitral and human rights tribunal decisions have held that there will be situations where, even in the absence of any direct indication from the employee that accommodation is needed, the employer may have a “duty to inquire” into whether the employee has a disability. One of the questions that then becomes the subject of litigation is whether the employer ought reasonably to have known that the employee had a disability that may have affected her work performance. If the answer to this is “yes”, then the employer will be expected to make inquiries of the employee before taking any adverse action.
In a recent arbitration decision involving an Ontario nurse who had her employment terminated for theft of drugs and gross misconduct, Arbitrator L. Steinberg addressed the employer’s duty to inquire. (The Regional Municipality of Waterloo (Sunnyside Home) and ONA (DS), 2019 CarswellOnt 443 (Ont Arb). The Union argued that the Employer had failed to make the necessary inquiries into the Grievor’s health in the weeks and months prior to her dismissal. In this regard, it pointed to concerns that had been raised by the nurse’s co-workers regarding changes in her appearance (weight loss, wearing the same uniform for 5 days), her interactions with co-workers (using profanity with staff) and other odd behavior.
Arbitrator Steinberg adopted the Union’s argument and held that the Employer had breached its procedural duty to accommodate the Grievor. Aside from finding a failure on the part of the Employer to give any thought or consideration to accommodation issues, he also noted:
 … The procedural duty to accommodate was also violated when the employer failed to take any steps or make any inquiries of the grievor, in the face of some obviously troubling observations of and reports about the appearance and behaviour of the grievor, which should have caused the employer to perceive that a disability of some kind might be present.
While this was the extent of Arbitrator Steinberg’s analysis on the duty to inquire, his reference to the Ontario Human Rights Commission’s Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions is instructive. He also cited the Ontario Human Rights Tribunal decision in Sears v Honda of Canada Mfg 2014 HRTO 45, at, wherein the Tribunal stated:
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.
Finally, Arbitrator Steinberg referred to two Ontario arbitral decisions which touch on the duty to inquire: Hamilton Health Sciences v ONA (Pinsonneault) 2013 CarswellOnt 17006 (Ont Arb) (Herman) and Direct Energy v CEP, Local 975  OLAA No 216 (Ont Arb) (Burkett).
While employers are not expected to be mind-readers, recent cases illustrate that there is a developing expectation that they not be passive recipients of information that is very often difficult and painful for employees to disclose. This is consistent with the growing recognition that employers need to take active steps to ensure that their workplaces are safe in all respects, including creating an environment which minimizes the stigma associated with such disclosures. According to the CAMH, “giving people the feeling that the workplace is a safe and supportive environment goes a long way to more open conversation.” Given that leaders are essential agents of change in the workplace, the CAMH is calling for mandatory mental health training at the leadership level, including middle management. Given the developments in the accommodation law regarding an employer’s duty to inquire, such training should also address the need to be reasonably attuned to changes in employees’ behavior, stressors in their lives, references to substance use, and concerns raised by their co-workers. And perhaps most importantly, mental health training should assist leaders in creating work environments that are conducive to having open conversations with highly vulnerable employees.