The perils of failing to accommodate mental health disabilities

The duty to accommodate mental health disabilities is one of the most important human rights issues affecting workplaces – in part due to its pervasiveness

The perils of failing to accommodate mental health disabilities

The duty to accommodate mental health disabilities is one of the most important human rights issues affecting workplaces – in part due to its pervasiveness. It is also one of the most challenging for employers to navigate effectively, given the complexities of any given situation. If employers fail to fulfill their duty to accommodate mental disabilities, they may expose themselves to significant legal liabilities.

Most employers are aware that it is discriminatory to fire an employee or deny them a job or a promotion simply because of their disability. However, less well-understood is the concept of constructive or adverse-effects discrimination, which occurs when a rule, requirement or policy results in unequal treatment on the basis of disability.

“Discrimination can take place without an employer’s intent to discriminate, which emphasizes the need for employers to be vigilant and proactive in ensuring that they are fulfilling their duties under human rights law,” says Kim Condon, Senior Legal Research Associate, Blue J Legal.

However, the duty to accommodate is not limitless. In the employment context, employers are not required to provide accommodations that would alter the employment relationship. For instance, an employer would not be required to create a job that would engage an employee in tasks that are not useful to the employer for the sake of accommodating the employee.

What constitutes undue hardship, therefore, will depend on the context. Unfortunately, for employers, there is no set formula for determining what accommodation is appropriate in a given situation. Accommodation may vary from person to person. However, courts regularly consider factors such as cost, availability of outside funding, and health and safety.

“Failing to accommodate an employee’s disability up to the point of undue hardship is an infringement of human rights legislation, and employers may be obligated to pay compensation,” Condon explains. “Compensation can include damages for injuries to dignity, feelings, and self-respect; lost wages; punitive damages; and back-wages. An employer can potentially be ordered to reinstate a dismissed employee.”

When accommodating mental health disabilities, one of the challenges faced by employers is a lack of awareness about the type of accommodation required. Unlike in the case of physical disability, where the barrier to accommodation is often apparent, identifying the appropriate accommodation in the case of mental health and other “invisible” disabilities is not always simple.

“Not all accommodations will be appropriate, or even feasible, in a particular case. As well, accommodations should always respect the employee’s dignity and not result in further stigma,” Condon notes.

To help organizations deal with the challenges that come with accommodating mental health disabilities, Blue J Legal will be hosting a free webinar on May 29 at 10 AM (EST).

Benjamin Alarie, the company’s CEO, will be discussing the influential factors that HR professionals should know when dealing with duty to accommodate cases and how AI can assist them in navigating complex accommodation requests. For more information on the webinar, HR professionals can register here.

 

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