Employment & Labour, Human Rights

Employers should take steps to accommodate SAD

By AdvocateDaily.com Staff

Although winter will soon be over, some individuals may continue to suffer from the mood disorder formerly known as seasonal affective disorder (SAD) — and employers who dismiss a request to accommodate it do so at their peril, Toronto employment, human rights and civil litigation lawyer Sean O’Donnell writes in The Lawyers Weekly.

O’Donnell, principal of SJO Legal, explains that SAD is classified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) as a major depressive disorder “with seasonal pattern.” Sufferers exhibit sleep disturbance, feelings of hopelessness and suicidal thoughts, most likely caused by lack of daylight in the winter months resulting in increased melatonin and decreased serotonin.

“Employees, particularly those who work long hours (the current audience) in offices with little natural light, can experience symptoms all year round,” he writes.

Although O’Donnell says no Human Rights Tribunal of Ontario decisions have yet found a failure to accommodate SAD, “as a major depressive disorder it should be protected under the code as a disability,” he adds.

In the U.S., he says, the decision in Ekstrand v. Somerset School District 683 F.3d 826 (7th Cir. 2012) provides some guidance on the issue.

Ekstrand reversed summary judgment in favour of a school district on a claim that it violated the Americans With Disabilities Act (ADA) by failing to accommodate an elementary school teacher suffering from SAD. Renae Ekstrand claimed the school district failed to accommodate by denying her repeated requests to relocate her class to a classroom with exterior windows. Ekstrand provided the school district with written notice of her disability and a request for accommodation from her psychiatrist, who stated that it was ‘crucial’ to her recovery that she work in an environment with natural sunlight.

“The court found that when the school district was provided with notice of these circumstances, it was required to accommodate her disability unless it could establish the accommodation would create an ‘undue hardship’ upon the school district (similar to the test under the code). The court found that the costs associated with a room change were not significant enough to constitute an undue hardship and affirmed a nominal award of damages,” writes O’Donnell.

As O’Donnell explains, given the heightened awareness of mental health disabilities and discrimination issues, there are a number of reasons why employers should take the appropriate steps to accommodate mental health issues, including SAD.

First of all, he says, a benevolent employer “may wish to assist employees suffering from mental health disabilities to cope with such afflictions for altruistic motives, i.e. to the personal benefit of the employee.”

Second, an economical employer “will recognize that having effective accommodation programs in place to address mental health disabilities may (i) lessen the effects of that mental health disability (allowing the employee to focus on getting well, to the economic benefit of the employer); and (ii) may reduce the need for short-term and long-term disability leaves and their associated costs to the employer.”

And third, an image-conscious employer “may reduce its chances of being named in a human rights application, which is never good for a company’s reputation or bottom line.”

Ultimately, when developing an accommodation program, writes O’Donnell, employers should first educate themselves on the issues involved with mental health disabilities, including the surrounding stigma and the lack of reporting of mental health disabilities in the workplace.

Employers must also train their human resource professionals and management to recognize the red flags of mental illness and draft clear policies and procedures for dealing with mental health disabilities in the workplace, while bearing in mind that there is no “one size fits all” approach, he explains.

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