With stress levels high, employers should be prepared to respond appropriately – and legally BY Sarah Dobson 19 May 2022 Share Throughout the pandemic, stress levels have been a concern. And two years into the crisis, those numbers continue to climb. Thirty-five per cent of Canadians are feeling burned out, according to a survey from Canada Life. Another found that 84 per cent have experienced burnout, with 34 per cent reporting high or extreme levels. Inevitably, these higher stress levels will lead to requests for mental health accommodation, so how should employers respond? They should always take these types of requests seriously, says Amy Gibson, partner at MLT Aikins in Saskatoon. “It may be something small or it might be something big, but we don't know until we have further information. So [the worker] might have an underlying condition that would trigger the duty to accommodate. Or it might just be something that means they're going to be off for a week… there's no one size fits all. Best practices are highly dependent on the circumstances.” One of the issues is the term “mental health” is so broad, and people have different interpretations of what it means, says Thomas Stefanik at Torkin Manes in Toronto. “It could be a serious mental health illness or it could just be someone struggling in the short term to deal with a situation,” he says. “So employers have to be wary of one size fits all doesn't work; they have to understand that employees have different needs, employees may have different requirements. And so simply calling everything ‘mental health’ might be overly simplistic and might lead to poor management.” Most Read Employer ordered to pay $70K in martial discriminatory firing Canada's most diverse companies for 2022 revealed Arbitrator decides employer discriminated on basis of creed in denying request for vax exemption How to handle a request for a mental health leave Often, employers are presented with a letter from a medical professional saying the person needs to go on stress leave, with an unknown date of return, he says. “How do you deal with a letter like that? It doesn't really tell you anything other than the person appears to be unable to work, but the employer doesn't know why. The employer, they're frustrated, because they'd like to help, but they don't really know what they can do. And there appears to be no end in sight.” That’s the time when the employer should try to find out what particular issues are a problem without delving into any confidential medical information, such as child care or workload problems. They can also ask about what changes can be made to help, such as changing hours, more flexible hours or working from home. “Trying to identify why the employee is struggling, if they're struggling, is the first step, and there may not be an easy answer, but I think that question has to be asked.” But an actual mental health leave should be considered if the employer is seeing sporadic and constant inability to do the work or if the employee appears to be not completing tasks, and is in denial or not providing appropriate responses, “There should be some thought given to suggesting the person take a leave to assist them,” he says, adding that many employers are obviously concerned that people will in some cases abuse sick leave policies. If an employer thinks the request is suspicious, it might want to ask for a medical diagnosis, says Gibson. “You don't get the diagnosis, but at least confirmation that the employee is suffering from a mental health condition that requires accommodation. And… you might want to dig into what sort of accommodations are required for that employee and the circumstances. So a leave of absence may not be the only accommodation, there might be others.” If it’s just a note for a couple of days’ absence and it doesn’t appear suspicious and falls within the sick leave policy, it’s not likely more is needed, she says. “But if you've got an employee who continues to be gone for months and months, and you don't know when they're going to be come back, then you might want to trigger a more detailed request for: ‘Does this employee have a condition? Does it impact their ability to attend work? Do we believe that they're going to be able to attend work in the near future? Can they work full time? Can they perform all their duties? What types of accommodations are needed for that position?’” The role of the medical professional In looking for more information about the employee’s request, and possible accommodations, it may be helpful to provide the medical professional with the person’s job description, says Gibson. “We'll say, ‘These are their job duties, can they perform them? Is it a full-time thing? Can they perform them part time? What kind of return to work program can we put together?’” However, the medical professional may not be able to give more concrete information, says Stefanik. “Looking at the job description may not further that process, because the medical profession may not understand the job. And we don't expect them to if it's a technical job, for example,” he says. “The medical professional simply has to rely on what the patient says, which is, ‘I feel really stressed and burned out. I can't do all the things I'm supposed to be doing.’ And at that point, it's difficult for the medical professional to come up with a suggestion or a concrete plan; all they can do is report what the patient is telling them… So it's back to the employer again.” Another challenge is that many medical practitioners are extreme advocates for their patients and will not provide the information sought or confirmation that this person has a diagnosis, says Gibson. “When you get pushback from medical practitioners like that, you have a couple of options. One is to remind them of their duties under their provincial governing body… or sometimes there might be the opportunity to explore an independent medical assessment — but whether that's appropriate or permissible is going to be dependent upon the circumstances: Are you unionized? Do you have a CBA [collective bargaining agreement] in place? … Have you been down this road a few times with the doctor and you're just not getting anywhere and this is the only logical step forward? Those kinds of things.” The frustration with many family physicians is they regard themselves as an advocate for the patient, and makes recommendations based on what the employee is telling them — which is understandable, says Stefanik. “The fact that the doctor is simply reiterating what the patient wants doesn't further the interests of the employer, because it's simply repeating what the employee wants, which may not be feasible.” Making accommodations When it comes to possible accommodations for mental health issues, the two most obvious ones are the physical work arrangements, such as working from home or a hybrid model, and the other is work hours, he says. “Can somebody work, if they choose to work, less hours? Or maybe different hours? Maybe they like to work early in the morning and stop early in the afternoon? Does that fit within the employer’s ability to accommodate and if all of their colleagues are working different hours, does one employee's request to work off those hours, does that impact on business needs, customer needs, etc.?” “Reasonable” accommodations for mental health requests are highly dependent on the particular situation, says Gibson “It might be an extended leave of absence, maybe this person cannot work; it might be reduced hours… it depends on what is the triggering factor? And if this person really is just burnt out and they need some time off, or if there is something else in the work environment that needs to be adjusted,” she says. “Really, it boils down to an employer's duty to accommodate protected grounds under human rights legislation up to the point of undue hardship and how you address these types of leaves, and requests for leaves.” But employers should know that it's a long road to reach the point of undue hardship, and a difficult and high hurdle, says Gibson. “It's sometimes potentially a couple years of getting updates on this employee and going through that accommodation process before anyone's in a position to decide on the hardship and part ways.” But keep in mind: Employees are entitled to reasonable accommodation, not perfect accommodation, she says. “Their medical professional might say, ‘Well, working from home would be nice, but it's not essential; really, what they need is a quiet place away from everyone else or something like that.’ And the employer goes, ‘Well, if that'll meet your needs then and that works better for our operations, then we can certainly do that.’ And you're not pressured to just do the accommodation that the employee says that they want.” But with so many issues of retention and recruitment these days, an employer should be careful not to summarily dismiss somebody who's a good employee who may, for example, want to reduce their hours, says Stefanik. “If the answer is ‘No, because we just don't do that,’ they may find that a competitor is able to do that, and they lose a good employee. So it's a business issue as well as a legal issue when these things come up today.” You've reached your limit - Register for free now for unlimited access To read the full story, just register for free now - GET STARTED HERE Already subscribed? Log in below LOGIN Remember me Forgot password?