Are employees entitled to 'mental health leave'?

Leading employment lawyers answer HR's pressing questions around mental health accommodation

Are employees entitled to 'mental health leave'?

It’s Mental Health Week – and while it’s a great reminder of the importance of psychological wellbeing, the truth is that every week should be Mental Health Week. And, for HR leaders, it normally is. Mental health concerns have skyrocketed since the pandemic. In Canada, employees are feeling more, stressed, depressed, and isolated than ever before – something that may not automatically reset when they return to the office. Employers need to brace themselves for a tsunami of mental health accommodation requests this summer - the most obvious being time off to deal with personal struggles.

“There’s two aspects to this issue,” executive coach and organizational expert Jim Frawley told HRD. “Is this a question of should employees take time off for mental health concerns, or whether they actually do?

“From a macro, theoretical standpoint, organizations should encourage time off for mental health concerns. When an employee isn't at their best, they aren't providing the value that they can. Theoretically for individuals, they should absolutely take time off – we’re far more important as human beings than any company project. So, on the surface, it's simple.”

Are employees entitled to mental health leave?

From a legal outlook, employers in Canada have some leeway when it comes to granting accommodation requests. As always, employers are encouraged to accommodate staff up until undue hardship – meaning that if you can be flexible, you really should be.

“Taking time off for mental health issues is the same as any time off for other issues,” added Lorenzo Lisi, partner at law firm Aird & Berlis. “Whether it’s paid or unpaid or covered by short- or long-term disability depends on the employers’ policies and practices. In certain provinces employees are also entitled to other leaves, such as in Ontario for Personal Emergency Leave days – all 10 of them - which are unpaid and provided under the ESA. Employers also often have Employee Assistance Programs (EAPs) which provide guidance and resources for employees who need confidential assistance with mental health issues, however they may arise.”

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Stress seems to be the main driver for employee absence right now. The pandemic coupled with remote work and a shed load of overtime has blurred the lines between work and home – leading to mounting pressure. The notion of ‘stress leave’ in Ontario was debated pre-pandemic, with some employee advocacy groups calling on businesses to do more to alienate the burden. However, according to Stephen Wolpert, partner at Toronto-based law firm Whitten & Lubbin, it’s hardly law yet.

“There is no special or specific entitlement to stress leave,” he told HRD. “Stress is a part of life; we all experience it and are all expected to cope with it in the workplace. However, sometimes stress goes beyond manageable levels and can actually be considered a disability – such as Acute Stress Disorder or Post-Traumatic Stress Disorder. In those cases, employees can make use of sick leaves, which are protected in employment standards legislation and may sometimes be enhanced by the employer’s sick leave and disability policies.”

Does an employee have to reveal mental health issues to HR?

Oftentimes employees simply don’t feel comfortable enough disclosing and mental health concerns to their employer. A recent report found that almost one four in ten employees would choose not to tell their HR leader if they were struggling – despite that being exactly what HR’s there for. But personal choice and a legal obligation are very different – and many employers are unsure as to whether they can request mental health records, especially if they’re asking for time off.

“Employees do not have a general obligation to disclose mental health or other health issues to their employers,” Cameron Wardell, associate at Mathews Dinsdale, told HRD Canada. “An obligation to disclose may arise if an employee is seeking an accommodation for his or her mental health issue or is seeking the use of a benefit such as sick leave, or if an employee’s disability is having an impact on the conduct of their position. Indeed, employers may, from time to time, be faced with a situation where they have a duty to inquire.”

A compassionate approach to accommodation requests

In the current talent market, branding and values are everything. Even though you might not have to grant employees time off to deal with mental health issues, it might be a good idea to at least consider it. As Frawley told HRD, employees don’t make a habit of requesting time off for depression or anxiety unless they’re really struggling.

“In general, people don’t take off the time that they need for mental health concerns,” explained Frawley. “And it makes sense - they have bills to pay, they may hesitate because it could be perceived as a weakness; the organizational culture or direct manager may not allow for it. Also, some people have made the recognition that there IS a mental health issue and may be in denial. Add to that, the workplace is a big driver of many of our mental health challenges.

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“This is changing - the conversation on mental health is happening; people are seeing that they aren’t alone, that other people have dealt with something similar, and that there are solutions and ways to address these challenges. This conversation needs to go much deeper and happen on a broader scale, and we will see that happen. The more the conversation occurs, the more individuals see that they aren’t alone and that they have the ability to deal with their challenges in a really productive way, with proper support, conversation and more.”

Finding a strategy that works for you

As with all things in HR and organizational planning, a ‘one-size-fits-all’ plan never works. To understand what works best for your individual mental health plan, sit down and speak with your employees. Consider adding in an additional day of Mental Health Leave into your annual leave offerings, schedule regular self-care days, ensure that your employees aren’t overworking their allotted hours.

Often, when we speak about mental health, it’s in a reactionary form – we’ve seen the issues arise and now we have to help cure them. Instead, employers should be taking a preventative approach. Don’t wait until your people are so stressed and depressed that they’re coming to you for help – instead, help foster a culture that promotes wellbeing and helps stem any underlying mental health concerns.

How are you supporting your employees this Mental Health Week? Tell us in the comments.

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