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To Ask or Not to Ask? That is the Question!

Suzanne Solsona

Associate
May 2, 2024

Under Canadian human rights law, all employers have a duty to provide a discriminatory-free workplace for their employees. While this seems intuitive, what does this really mean in the context of dealing with an employee who may have a disability or illness that is not immediately obvious?

Mental health issues such as anxiety, depression and substance abuse are often hidden. A broken, casted foot can be seen for what it is. Your employee can’t walk, and so they request that different duties are assigned to them until it is healed, or you simply offer the revised duties because it is obvious they are needed.

However, “invisible” health problem such as depression or substance use might manifest as poor attendance or even an anger management issue and not all employees with mental health issues feel comfortable sharing that information with their employer. The historical stigma associated with them may inhibit many people from disclosing mental health problems to employers.

While many employers are now aware of the duty to accommodate, they are often unaware of the accompanying “sub-duty,” which is the “duty to inquire.” The onus to ensure a discrimination-free workplace lies with the employer and so it is essential to identify the situations in where the duty to accommodate is triggered. As in the case of a broken foot previously mentioned, in most circumstances, the duty arises when an employee requests an accommodation from an employer.

However, the duty to accommodate may also be triggered in situations where, even though an employee has not made an accommodation request, the employer has observed behaviours that causes a suspicion or awareness that the employee’s poor job performance (or other issues at work) might be connected to a mental health issue. In that situation, the employer has a positive duty to inquire into whether the employee needs accommodation for a mental disability.

Employer should be attentive when an employee exhibits patterns of behaviour that deviate from their previous performance, as this might indicate a mental health problem. For example, employers should be cautious and alert if an employee suddenly (or increasingly) is late to, or away from, work, complaining about fatigue, pain or illness, or exhibiting increased frustration and decreased interest and productivity. In such circumstances, it is likely that the perceived change in behaviour at work has sparked the duty to inquire into the situation with the employee.

At this point, an employer should take steps to raise the issue of a suspected mental health disability with the employee. This can be addressed in ways that are less confrontational and provide the employee with an opportunity to disclose the problem and request accommodations. For example, the issue can be raised in the context of a regularly scheduled work performance evaluation or in the context of adhering to a workplace attendance policy.

When addressing a suspected mental disability, it is best to involve only a few people in the meeting, as it provides a greater sense of confidentiality and trust. Additionally, it is important to present the concern in terms of poor performance or attendance so that the employee doesn’t feel that you are prying into their personal life rather than trying to address a workplace issue.

Some employees will be cooperative and disclose that they are indeed experiencing mental health issues. Be ready to present options for accommodations if requested and refrain from requesting that any diagnosis be shared; employers do not have a right to that information.

When an employee discloses a mental health issue, it is likely not appropriate to discipline them. Rather, it is better practice to create a plan moving forward and clearly indicate your expectations for improvement. If performance (or attendance/attitude) does not improve, further discussions will be warranted. What is crucial for employers to remember is that they discipline only culpable behaviour- that is, behaviour that is within the employee’s control. Having clear policies regarding attendance and performance that set out the consequences for not adhering to them will go a long way in making sure that disciplinary action taken is not discriminatory, rather based on the breach of an established workplace policy.

Not all employees will cooperate or respond to questions regarding possible underlying mental health issues. Some with obvious issues may even deny there is a problem. Employees have the right to keep their health information to themselves. If an employee does not provide an explanation for their poor performance/attendance/attitude in the workplace, then an employer has some decisions to make, including whether to impose discipline. If there are issues of safety involved, it may be incumbent upon an employer to remove the employee to ensure that it is meeting workplace safety obligations.

Regardless of the employee’s response to such inquiries, the employer always retains the right to control the next steps. Moreover, when an employer suspects a mental health issue, it is often unlikely that one meeting will resolve the situation. Having a defined process for dealing with such situations is vital. It is very possible that you will need to request some medical information to determine the necessary and appropriate accommodations. Employers are entitled to ask for medical information such as confirmation that there is a condition that restricts the employee in some way and the accommodations required. However, keep in mind that employers are not entitled to diagnoses.

For small businesses in particular, having an employee call in sick on a regular basis can create significant issues for not only the employer, but also the organization’s other workers. Poor performance caused by mental health issues can also affect the morale of the team. So, what are your legal obligations as an employer if one of your employees is unreliable and consistently missing several days of work per month or fails to improve their performance?

Case law on this topic demonstrates that the legal concept of the duty to accommodate “to the point of undue hardship” is one that must be evaluated in context. What is required of one employer when workplace policies and practices come into conflict with employee needs connected to protected characteristics (disability, sex, family status, etc.), may not necessarily be required by another.

In a recent BC Human Rights case, the Tribunal reviewed the circumstances of an employee alleging discrimination based on physical disability. The employee argued that her employer terminated her when she requested a medical leave. The employer argued that it had addressed the employee’s performance prior to terminating her and that it had given her opportunity to request accommodations if required. The employer applied to have the complaint dismissed on the basis that it had no reasonable prospect of success, arguing that it dismissed the Complainant solely for poor job performance. The Tribunal agreed and dismissed the Complaint based on the “undisputed evidence” that the complainant had not requested accommodation beyond time off to attend medical appointments. Moreover, the evidence showed that the employer had met with the complainant on several occasions to discuss her job performance and gave her ample opportunity to disclose medical issues and request accommodations.[i]

In another case,[ii] the Complainant disclosed to her employer that she had mental health issues and took a two-month leave. Upon her return her performance had improved and there were no ongoing limitations or accommodations. Approximately two years later, the Complainant changed positions and her supervisor suspected mental health issues. When asked, the Complainant told her employer that she did not have a mental disability and didn’t require accommodation. The employer terminated the Complainant for poor job performance. The Complainant believed that her mental disability was the reason for the dismissal. Upon consideration, the Tribunal agreed with the employer. The Complainant had not established that her disability had been a factor. Moreover, it was her decision not to disclose her mental health issues and, in fact, she took “the position that she did not engage in the conduct underlying the termination, and, to the extent that the evidence support[ed] that she admitted some of the conduct, she did not require accommodation.”[iii]

The key takeaway from the decisions above is that employers must make sincere and continued efforts to assess the mental and physical health of their employees when job performance is suffering.  If you suspect that an employee’s work struggles are due to a medical disability (such as a mental illness), even as a small business you have an obligation to inquire further into the issue and to assess whether an accommodation is required. This is especially vital if you are considering disciplining or terminating the employee because you run the risk that the Human Rights Tribunal will find that you had a duty to inquire and that you breached human rights law by failing to make such inquiries. Moreover, even as a small business you are required to provide accommodations to the point of undue hardship, which must be evaluated seriously and carefully. While this does not mean that you must endanger the viability of your business, you are obligated to do your utmost to find a way to accommodate an employee dealing with mental health problems.

Once medical information has been obtained and accommodations are provided, the employee is obligated to work with you in good faith to improve. If your employee continues to refuse to show up at work or perform as directed, and there is no medical reason that prevents them from doing their job, then you are entitled to discipline the employee. This includes termination if the behaviour has been prolonged, and the employee shows no signs of improvement.

The duty to inquire and duty to accommodate can be complex issues. If you suspect that mental health problems are impacting your business, contact us at Ascent and we will provide practical and proactive guidance to help navigate those stormy waters.

[i] Ruckaber v. BC School Superintendents Association and another, 2023 BCHRT 242

[ii] Lord. v. Fraser Health Authority and another (No. 2), 2022 BCHRT 49

[iii] Ibid at para. 97.