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Mental illness can be a taboo subject that employers shy away from discussing. Mental Illness accommodation often makes employers cringe because they either do not recognize a need to accommodate or do not know how to engage in appropriate and necessary accommodation.
In the recent Northwest Territories case of Thorson v. The Government of the Northwest Territories 2013 CanLII 82655 (NT HRAP), the Human Rights adjudicator provided some valuable advice to employers about the necessary elements of appropriate accommodation in mental illness situations.
The adjudicator ruled that the dismissal of a project officer with the Northwest Territories Department of Public Works and Services for excessive absenteeism was discriminatory on the basis of disability given that her absences were related to depression. The adjudicator found that that the employer was aware of her disability and ruled that the employer failed in its procedural duty to investigate possible accommodative measures. The adjudicator awarded her $25,000 for injury to dignity, feelings and self-respect.
In criticizing the employer’s actions in this case, the adjudicator enunciated some key procedural steps that employers must follow when handling mental illness issues in the workplace. The four most important ones were:
- The adjudicator indicated that the procedural aspect of accommodation, or “how it is achieved,” is “as important to the objective of treating employees with dignity and respect as the actual result of any efforts to accommodate those employees.”
In the case at hand, the adjudicator found that the employer had not done what was necessary in this regard because it failed to engage in any dialogue with the employee despite being aware of her condition as of November 2005. In his view, the duty to accommodate and enter into a dialogue with the employee should have been apparent to the employer by November 1st, 2005 when she attended at the employer’s place of business with a medical certificate and spoke about her illness. At that time she was extremely ill. She was dealing with family problems as well. She began receiving letters threatening the termination of her employment for innocent absenteeism and abandonment. The adjudicator noted that she felt under attack by her employer.
- The adjudicator also indicated that the procedural component of the duty to accommodate is an element of the need to treat employees with dignity and respect. It is also needed to alleviate the acute risk that critical information for both the employee and employer is overlooked.
In this situation, the evidence demonstrated that there was no collaborative search to accommodating the employee. No one on behalf of the employer engaged the employee in any kind of discussion about her workplace needs. There were no meetings scheduled for that purpose nor were there any meetings during which those needs were discussed, even incidentally. The individual who was the final arbiter of her employment, never talked to her. He never directed anyone to talk to her. Human resources staff who provided advice, who drafted letters for signature, and who obviously informed and directed the actions of the employer did not have a single conversation with her about her needs.
- The responsibility for providing reasonable accommodation lies with the employer, not the employee’s doctor.
In the case at hand, the adjudicator stated that the responsibility to review the employee’s job functions in the context of her illness lay with the employer. If the employer was dissatisfied with the doctor’s responses, it had the employee’s consent to discuss those responses with him, and it was free to discuss those responses with the employee herself. The adjudicator was critical of the employer’s reliance on the doctor to, in effect, “give [it] a prescription for meeting its duty to accommodate.”
- The employer must adduce evidence of actual problems that the absences created in order to rely upon an undue hardship defence.
In this case, the adjudicator noted that the reassignment of projects was commonplace at the workplace and that the employer had not established undue hardship as a result of the employee’s absenteeism, given its failure to adduce evidence of any actual problems that the absences created for her co-workers, or any economic impact on the employer as a result. In the adjudicator’s view: “While [the employee’s] workload was adjusted from time to time following her absences from the workplace, those adjustments were imposed, unilateral and without a reasonable effort by [the employer] to consider her individual needs and circumstances. The adjustments to her workload did not result in any undue hardship to [the employer].”
Employers should therefore take note that if they do not identify a need for accommodation of mental illnesses or do not engage in a sufficiently thorough procedure on receiving an accommodation request, they are at significant risk of paying damages to the affected employee.[i]
[i] Please note: The adjudicator’s decision is this matter was appealed by the employer to the Northwest Territories Supreme Court in April 2013. However, the matter was resolved by the parties, and no appeal hearing took place.