The Canadian Bar Association
Employment & Labour

Proactive approach best with workplace mental health issues

Toronto employment lawyer Miriam Anbar tells AdvocateDaily.com the findings of a recent national study on mental health in the workplace are “disappointing,” particularly given that one in five Canadian workers is struggling with this issue.

“It’s unfortunate that in 2017 mental health in the workplace is still a controversial issue,” says Anbar, an associate with Rodney Employment Law, a boutique Toronto employment firm.

The study, by The Globe and Mail and Morneau Shepell, is based on data gathered from more than 1,500 respondents to an online survey. Key to the findings: stress or trauma are the leading causes of mental health issues, with 34 per cent of participants citing stress as their primary concern. And 55 per cent indicated that they haven’t told their employer about their mental health issue.

“I think the stigma is still there,” Anbar says. “And for some companies, there isn’t enough awareness around mental health, and there isn’t enough action.”

There are ethical, business and legal reasons employers should adopt good policies and practices around mental health, she says.

“From an organizational standpoint, there are many benefits of being proactive and managing it properly,” Anbar says. “It could result in increased productivity and staff retention as well as reduced absenteeism. And, if the employee felt supported at work, this would likely increase their engagement.”

The reverse is also true: ignore it and risk a host of problems, including disengagement and absenteeism, and also significant legal challenges, including human rights allegations based on discrimination, as well as potential claims of wrongful and constructive dismissal and failure to accommodate.

“I think employers need to be mindful of their obligations to eliminate barriers and disadvantages for employees,” she says. “Ignoring the issue will only create more problems down the road.”

If employers are more progressive, employees may be more open.

“Companies sometimes fear that disclosure, because they understand they have legal obligations,” Anbar says. “But often they don't know how they are supposed to manage them. They’re scared of the unknown. Employers need to understand what their duties are.”

For starters, they needn’t worry that accommodation will be limitless, and will kill profitability, she says.

“Accommodation requires a reasonable solution, not a perfect one,” Anbar says. “They aren’t expected to provide accommodation that would cause them undue hardship.”

However, there are many steps that can be taken before reaching the threshold of “undue hardship.”

She uses the analogy of an empty elevator.

“Every person who gets in the elevator is one step in the accommodation process. Until you get to the point where you can’t fit another person in that elevator, you have not reached undue hardship.”

Along with a duty to accommodate is a duty to inquire.

“It’s not enough for employers to say, ‘Well, they never disclosed that,’” she says. “They need to delve a little deeper.”

That doesn’t mean querying staff about their mental health. But if performance is subpar, and there are indications mental health might be part of the problem, it’s not only acceptable, it's legally necessary to inquire.

“It might be as simple a question: ‘How are you? How is everything? Is there anything you need to talk about?’”

Of course, work-related stress is just part of the picture, according to the research.

The study found that of the 55 per cent of respondents who did not disclose their mental health problem to their employer, 70 per cent reported their work experience affected their mental health and 72 per cent said they felt that revealing it would hurt their career potential.

“If you potentially have a high percentage of employees who are affected by their work experience, there may be barriers you could address,” she says. “You want to avoid potential claims. It doesn’t mean opening the door will only increase potential damages. It means if you take a proactive approach, you could prevent these claims from getting any traction down the road.”

Along with its legal services, Rodney Employment Law’s sister company, MaxPeople, a human resources consulting firm that offers premium HR services to organizations, assists with these types of issues by facilitating compliance and management training, creating policies and programs, and providing one-on-one executive coaching when needed.

“These are sensitive issues, and they need to be dealt with very carefully,” she says.

Ignore them, and your company’s reputation could also be on the line. Anbar cites an exchange between an employee and CEO that went viral in June.  The CEO personally thanked the employee for using sick days for mental health, commenting that she was an “example” to the team, helping to “cut through the stigma.” 

Responding to the outpour of overwhelming support, the CEO wrote a blog post to further express his disappointment in the lack of communication when it comes to mental health in the workplace.

“This exchange went viral in a majorly positive way for this company.  It’s a great example of where progressive companies should be going,” Anbar says. “If a company doesn’t treat an issue like this with respect and professionalism, it can go viral in a negative way. You don’t want to be a company making headlines for the wrong reasons.”

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