Michael Ford (post until Oct. 31/19)
Employment & Labour

What triggers the duty to inquire about a mental illness?

Employers concerned about job performance that could be linked to mental health issues may have a duty to ask the employee if they need help before termination, Toronto employment lawyer Doug MacLeod writes in The Lawyer’s Daily.

This obligation is discussed in the Ontario Human Rights Commission’s policy on ableism and discrimination based on disability, says MacLeod, principal of MacLeod Law Firm.

“Where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone’s job performance… the organization has a ‘duty to inquire’ into that possible relationship before making a decision that would affect the person adversely. This includes providing a meaningful opportunity to the employee … to identify a disability and request accommodation,” the policy states.

MacLeod outlines two cases as examples. In Mellon v. Human Resources Development Canada 2006 CHRT 3 (CanLII), an employee who had taken a sick leave and later experienced panic and anxiety attacks in the workplace did not have her contract renewed. The adjudicator noted the employer should have recognized the “red flag.”

“It is not enough for the respondent to say that they were not advised of or aware of the complainant's condition,” the decision said. “It had the responsibility to at least inquire as to whether the complainant's condition might impact upon its decision to terminate the complainant.”

In Krieger v. Toronto Police Services Board 2010 HRTO 1361, a probationary police officer who faced a “life or death struggle” at a mall later “overreacted” while encountering an intoxicated person at a fast food restaurant. He was terminated a few months later. The adjudicator ordered that the officer should get his job back, MacLeod writes.

“Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the code,” according to the decision. “Prudent employers should try to offer assistance and support to employees before imposing severe sanctions.”

MacLeod says it is clear the employer should look into any unusual behaviour, and allow the employee to request accommodation to alleviate any mental distress.

“The bottom line is, if an employee starts acting erratically or performing poorly and this is out of character then before disciplining or terminating there may be a duty to inquire whether the employee has a disability that requires accommodation,” MacLeod says.

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