For employees and employers, dealing with mental health issues in the workplace can get challenging, delicate and tricky.
The formal legalities are succinct and clear cut. The Alberta Human Rights Act (AHR Act) prohibits discrimination based on physical and mental disability. Federally, the Duty to Accommodate is a legal duty imposed on employers, since the Supreme Court of Canada ruled that an employer has a legal duty to take reasonable steps, in policies or conditions of work, to accommodate an employee’s individual needs, which include mental disability.
However, as Edmonton employers, employees and employment lawyers point out, it can get complicated. Doctors, clinicians and researchers emphasize a strong link between mental health issues and the contemporary workplace.
According to the Canadian Mental Health Association Alberta (CMHA Alberta), because work is so important to well-being, in addition to the income it brings, it can be a big part of people’s identity; so, mental illness can have a big impact on the way people work. CMHA Alberta also emphasizes the importance of understanding that mental illnesses are real illnesses, like diabetes or asthma and others.
The workplace connection and impact can get difficult to manage, but there is broad workplace agreement that mental illnesses are health problems that unarguably affect the way people think about themselves, relate to others and interact with the workplace. Mental illnesses are proven to affect thoughts, feelings, abilities and behaviours.
In the workplace, as in life in general, depression and anxiety disorders are the most common mental illnesses. Research shows that mental illnesses are more likely to come up during times of stress or uncertainty, which are often subtle or routine parts of many people’s jobs. The experts point out that life stress outside of work can also affect mental health, which may then affect a person at work.
For employees and employers, one of the trickiest and most glaring complications is that most mental illnesses are episodic. Employees have periods when they are well and productive and also periods when they are unwell and their overall work functioning is low. Workers who experience a mental illness may doubt their abilities or appear less confident, may have a hard time concentrating, learning and making decisions. Experts also caution that a worker who can’t concentrate may also feel that they can’t do their job well or worry about losing their job.
According to Edmonton lawyer Chelsea Scott with Taylor Janis LLP, “Some of the key aspects of Alberta employment laws about mental health in the workplace are whether the mental health concern is an injury that occurred at work and whether the mental health concern requires specific accommodation from the employer.
“If an employee has a mental health concern that affects their work, it is important to seek medical attention in order to determine whether a diagnosis can be made. If the legitimate mental health concern is disclosed to the employer with some supporting evidence, the employee is entitled to accommodation of their mental health concern.”
Scott adds that it is essential for employers to be aware of the duty to inquire and recognize signs of a potential disability in an employee. If an employer notices that an employee is performing differently and suspects that it may be due to a mental health concern, it is important to act on that suspicion and request information and provide support to the employee, particularly if it is about the employee’s negative performance.
“When an employee’s mental health condition qualifies as a disability, rendering them unable to perform their normal workplace duties for a prolonged period of time, Alberta’s Human Rights Act steps in,” explains Halley Auger, employment lawyer and Associate with Samfiru Tumarkin LLP.
“It compels employers to make reasonable accommodations to ensure that employees can remain active participants in the workforce. This may involve adjusting existing rules, policies, or practices to support their continued engagement.”
There is definitely a trend, showing that mental health issues at work are more common in the past five or so years.
“Our firm has observed a notable uptick in the frequency of medical leaves, short-term disability cases and even long-term disability claims over the past five years. The stressors of the global pandemic, including personal and family health challenges, financial concerns and the pervasive feeling of isolation have played a role.”
The experts agree that the once-taboo topic of mental health struggles is now emerging from the shadows, leading more individuals to openly acknowledge their challenges instead of quitting or abandoning their careers.
While the private sides of disclosing mental illness issues at work can range from stigma, workplace perceptions and embarrassment about what people may think, to worries about chronic absenteeism, demotion or getting fired, employment laws are definite. The Alberta workplace facts confirm and caution that it is illegal for an employer to fire an employee because of a mental health condition and it is unlawful for a company to discriminate against a physical disability or mental health condition.
For employers (and HR departments) mental illness must not be treated differently than any other illness. In cases where an employee’s medical condition requires an extended leave of absence, employers are entitled to ask the employee to produce a doctor’s note.
For the employer, it is crucial to handle the request with sensitivity, mindful of the employee’s right to privacy. When an employee is on long-term illness and injury leave, the employee must provide their employer with a medical certificate stating the estimated duration of their absence.
For the employer, there is a critical postscript.
“When asking for a doctor’s note,” Auger says, “the employer is not entitled to know what an employee’s specific diagnosis is, since that information falls within privacy rights. Employers may ask about the expected duration of the illness or injury, whether the absence is temporary or permanent and any work restrictions or accommodations that can assist the employee with a successful return to work.”
The law spells out the employer’s obligations to investigate and verify.
“When an employer suspects that an employee’s workplace performance is being impacted by a mental illness, they can – and are legally mandated – to make inquiries about the situation before considering disciplinary action or termination.”
She points out that, after the inquiry, if the employer determines that a mental illness is at least a contributing factor, they are obligated to consider whether accommodating the disability is possible without reaching the point of undue hardship.
With genuine respect and consideration for the private and personal aspects of mental health issues and prioritizing employee health, properly and fairly dealing with the legalities and corporate policy aspects of workplace mental health issues can and do get tricky for the employer.
According to Alberta law, if an employer is not clear why an accommodation is being requested from an employee, the employer has the right to request medical documentation.
“An employer has a duty to inquire into the disability in order to provide a suitable accommodation,” Scott points out. “It is not always possible to provide a suitable accommodation without medical evidence to support it. Requesting a doctor’s note for any temporary or permanent accommodation due to a claim of stress and anxiety, is a best practice for all employers.”