There may be instances when an employee’s behaviour or conduct leads an employer to believe that the employee may be suffering a mental health crisis. If the employee raises the issue and seeks assistance or disability leave, there are steps and protocols to follow, including accommodating the employee to the point of undue hardship. However, sometimes an employee does not raise the concern. This could be due to many factors, such as the inherent stigma around mental illness, fear of repercussions and sometimes the employee themself may not be able to recognize the extent of the disability.

If the employee is silent on the matter, how should an employer handle the situation, particularly if the conduct is affecting the employee’s work performance or safety? This issue is a very difficult one to deal with, from the employer’s perspective particularly.

Offer Accommodation, Not Diagnosis

Certain unusual behaviours may lead an employer to conclude that there may well be a real mental disability leading to an employee’s conduct. First and foremost, an employee who has exhibited evident signs of mental distress should not be terminated, even where the employee has not come forward with an explanation or diagnosis. The company, in this context, should make inquiries to determine what it may do to assist as a first step.

However, without any information about this from the employee directly, it is not an employer’s place to diagnose employees. Instead, raise the issue around the conduct or other concerning performance issues, and ask what can be done to support the employee. Suggestions for accommodation can be made without reference to mental health issues or other medical concerns. An employer should also refer the employee to employee support services and benefits providers, to ensure that the employee is aware of options.

It is well accepted that accommodation is a two-way street, which presents certain obvious issues when the employee has not acknowledged a need for such assistance. In that event, a fair attempt to do so will likely end the case for any employer liability from a human rights perspective. The issue is more complex, however, outside of direct human rights issues, as seen below.

Forms of Accommodation

As stated above, accommodation is required to the point of “undue hardship”. This is an onerous obligation.

Obvious forms of accommodation may include working with an employee seeking a leave period, access to short term and long term disability benefits where these exist, workplace schedule adjustments, or revisions to the daily job functions, all of which are dependent on the context of the situation. Where treatment plans have been identified as necessary, there will be clearly an obligation on the employer to facilitate with a leave period or time off for the employee to attend such a program.

The Consequence of Failing to Accommodate

Human rights claims due to the failure to accommodate have led to significant awards for lost income, reinstatement and damages for personal anguish. One case awarded lost income for some 11.5 years, although not based on a mental disability.

Civil Claims

One Ontario case dealt with a claim made by the employee for disability benefits in this context. Following a series of events in which the employer concluded that the employee was not performing his job properly, the employer notified the employee that he would be terminated. Later that day, the employee also submitted his resignation. It was later demonstrated at trial that he was at this time suffering from a serious mental disability.

The employee sued for wrongful dismissal and also sued the employer and the insurer for disability benefits even though he had not made such an application for these benefits during his employment. By the terms of the policy, a claim was required to be submitted within 15 months of the eligible date.

The court found that the employer had been aware of the disability. While the employer was not found to have wrongfully dismissed the employee, the court found that it had been negligent in failing to assist the employee in seeking disability benefits. It was also determined to have been an agent of the insurer and hence the insurer also had “knowledge” of the disability.

The claim was awarded in the sum of 8 years of disability benefits and the loss of a spousal pension. The claim ended at 8 years due to the employee’s death. It would have continued until age 65, barring this unfortunate event.

In today’s world, there would have also likely been a human rights claim for failure to accommodate.

Lessons Learned

This is a complex and difficult issue for both sides of the table. Accommodation is not easy and clearly should be guided by professional advice. Employers walk a fine line when attempting to assist an employee who has not raised this issue of mental health and should proceed with caution.

Get Advice Before You Act

This is a highly sensitive issue and needs a careful and steady legal hand for guidance. If you have questions about this issue or any employment question, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.


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