With mental health issues a leading cause of disability these days, employers need to understand the legal implications and risks if they don’t handle such cases well.
Julia Kaisla, director of community engagement for the Canadian Mental Health Association, BC division, and Julie Menten, an associate at Roper Greyell LLP, a Vancouver law firm specializing in employment and labour issues, spoke at the 2014 Benefits & Pension Summit in Vancouver about the impact of mental health in the workplace and how employers can avoid lawsuits arising from claims of discrimination.
“Mental health is not invisible,” said Kaisla, noting that common signs and symptoms include changes in physical health, eating habits, personal appearance, sociability, quality of work, punctuality and response to new and familiar tasks.
From a legal perspective, seeing dramatic changes in an employee’s behaviour triggers the employer’s “duty to inquire,” added Menten. “Although it is easy to think ‘performance management’ when issues arise in the workplace, employers need to make sure whether or not behaviour is connected to a mental health issue.”
It is critical to seek input from a physician since employees are protected from discrimination in employment on the basis of a mental illness diagnosis such as depression, anxiety, schizophrenia, bi-polar or addiction. “If an employer fails to make these inquiries and disciplines the employee, that discipline can amount to a breach of the Human Rights Code,” Menten explained.
Once a legal disability is present, the employer has a duty to accommodate up to the point of “undue hardship.” Discrimination arises when an employee has a mental disability and experiences adverse treatment (such as demotion, schedule change, pay loss, discipline or termination) that is connected in part or in whole to the disability.
Kaisla stressed the need for more mental health education, less stigma and better training for managers to handle mental health issues in the workplace. “It’s important to start the conversation and address behaviours early,” she said. “It can start by sitting down with the employee and saying ‘I notice…,’ ‘I’m wondering…,’ and ‘Let’s focus on solutions at work.’ Early intervention is the best approach.”
All the articles from both the Vancouver and Toronto events can be found on our special section: 2014 Benefits & Pension Summit Coverage.