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The Duty to Create a Mentally Healthy Work Place

Jessica Gibson

Associate
February 11, 2022

What is Mental Health?

First, what is mental health? According to the World Health Organization:

Mental health is a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.

Mental health is considered to be analogous to physical health, fitness, and physical illness and injury. 

Just like physical health, mental health can be strengthened and better protected through prioritizing certain practices. 

 

The Impacts of Mental Health Issues

Putting protective practices in place has become particularly important in light of the current COVID-19 pandemic. The pandemic has taken an emotional toll on people in Canada, as 77% of adults have reported feeling negative emotions as a result of the pandemic. The five most common negative emotions across Canada were ‘worried or anxious,’ ‘bored,’ ‘stressed,’ ‘lonely or isolated’ and ‘sad’. This is according to the third round of data from the Assessing the Impacts of COVID-19 on Mental Health national monitoring survey released by the Canadian Mental Health Association (CMHA) in partnership with UBC researchers to mark CMHA’s 70th annual Mental Health Week.

The report is hardly surprising. In the past year, people have suffered personal loss and experienced financial difficulties. The prolonged isolation and uncertainty have led to an increase in depression, anxiety, addictions, and thoughts of self-harm among the public. Even before the pandemic, mental health was a major concern with one in five Canadians expected to experience a mental health problem in any given year.

Unfortunately, there is still a great deal of stigma around mental illness and even mental health supports. This stigma is a problem, because it prevents people from voicing a need for help and having a compassionate view towards themselves and others. What’s more, unaddressed mental health issues can have an impact on various facets within the workplace through: 

  • Increased levels of absenteeism

  • Low levels of job performance

  • Disengagement from the work itself and from colleagues

  • Inappropriate nonverbal communication

  • Inappropriate language

  • Inappropriate behaviour

  • Poor attitude

If behavioural and performance issues are present but not addressed, the issues listed above could result in serious consequences to both worker psychological safety and business success. 

 

Employers’ Duties

Employers have a unique responsibility and opportunity to create an environment that is cognizant of employee mental safety and satisfaction. Employers are required to protect the mental health of their employees while they are at work, physically or virtually. This includes protection from harassment, violence and bullying. Employers duties to their employees’ mental wellbeing are cited within the: 

  • Human Rights Code, RSBC 1996, c 210

  • Part 2 of the Workers Compensation Act, RSBC 1996, c 492

  • The Occupational Health and Safety Regulation, particularly Part 3, Rights and Responsibilities

  • WorkSafeBC’s Occupational Health and Safety Policies

Whether you are the leader of a large organization or a small business, there are various ways an employer can build the foundation for a mentally safe place for people to work. 

People typically spend a larger portion of their waking hours at work than anywhere else, which is why employers and business leaders are in a unique positions to foster wellbeing within their communities. Employers are recognized under the Human Rights Code as having a duty to accommodate an employee suffering from a diagnosed mental disability. That disability could be chronic or acute, and is the employer’s duty to accommodate up to the point of undue hardship.   

Accommodating the mental health needs of an employee may require some creative thinking or flexibility, but research increasingly shows that doing so pays dividends in employee productivity by reducing turnover and associated costs, and fostering workplace morale. Supporting employees to be engaged and productive workers is a considerate human approach and also just makes good business sense. 

Employers can also be held liable for failing to accommodate an employee with a mental disability or exposing employees to unsafe work environments that result in psychological harm. Unlike physical illnesses, workplace mental health issues are often more difficult to pinpoint and can remain undetected without the oversight of an observant employer.

An employer has a legal duty when presented with an employee who may be dealing with mental health issues to inquire. For example, if an employee suddenly exhibits a change in work performance, or their behaviour at work suddenly becomes erratic, then the employer has a duty to inquire as to what may be behind the sudden change. The duty to inquire can result in a tricky balancing act with the equally important obligation to respect employee privacy. The key is for the employer to create an open and supportive workplace in which mental health issues can be addressed sensitively and without fear of repercussions.

What Can Employers Do?

Employers, responsible for a large or small workforce, have the ability to implement practices that foster mental safety and strengthen mental health in their employees. An excellent place to start is by creating a workplace policy that addresses mental health. The policy should outline how an employee can report a need for accommodation, what the employee can expect when they report an accommodation need, who they report to, how will their personal information will be used, and what company resources are currently available to accommodate employees’. 

A work place should also always have an anti-harassment policy which clearly and strongly prohibits employee harassment and details how to report harassment, how harassment with be handled and the resources available to the person who may have been a victim of workplace harassment. 

The workplace anti-harassment policy should set acceptable boundaries within which all internal stakeholders are expected to operate. It should also set out who is responsible for its enforcement, its scope, how employee privacy will be handled and when new hires will be provided training about its existence. Also important is a section addressing the frequency with which the policy will be reviewed.

Workplaces that have a history or propensity for harassment issues should also consider sensitivity training for employees which centres on respectful conduct and attitudes in the workplace. The workplace’s policies and strategies should align with the relevant statutes of occupational health and safety as well as human rights legislation, both of which are designed to protect employees in Canada.

Sensitivity training is another way of instilling values such as respect and dignity in the workplace and can demonstrate to employees what the organization’s core values are. This kind of training, if done during the onboarding process, also gives employers the opportunity to provide new employees with a common understanding of what acceptable behaviour, language and attitudes are within the company. Sensitivity training can include providing existing employees with cultural sensitivity training for diversity to guard against an organizational climate of exclusion based on race or culture. 

The stigma surrounding mental health continues to be significant, yet, 1 in 5 Canadians will experience mental health issues in a given year. The need for effective accommodation of employees with mental health needs is pressing and real.

Accommodations need not be perfect, and they may have to be implemented over time. But to be meaningful, accommodation should always be guided by input from the person living with mental health issues, and should promote their dignity and autonomy to the greatest extent possible. 

If you are interested in developing or enhancing policies that encourage mental health practices in your workplace, schedule an appointment with Ascent Employment Law today!