A topic that many people struggle to talk about is mental health. Due to the pandemic, the importance of mental health and mental wellbeing has heightened in recent years.
Many employees have mental health issues, whether it be personal matters, financial trouble, or job-related stress. It is your duty under human rights legislation to accommodate your employees with mental health concerns.
In this guide, we’ll explain what mental health discrimination is, the law regarding it, and tips to prevent it in the workplace.
What is Mental Health Discrimination?
Mental health discrimination at work refers to circumstances in which an employee is treated less favourably than others. This includes being put at a disadvantage because they suffer or are perceived to be suffering from a mental health condition that amounts to a disability.
Disability is a ground protected under human rights legislation in Canada. If you treat someone unfairly because of their condition, you are breaking the law and may be liable for discrimination.
What are the Different Forms of Discrimination?
There are several ways an employee may be discriminated against because of their mental health or mental illness. These forms include:
- Direct Discrimination.
- Indirect Discrimination.
Employers may be liable for managers who discriminate against an employee because of their mental health.
The Law Regarding Mental Health Discrimination
Mental health discrimination in Canada is protected under human rights legislation.
Each province has their own established human rights legislation. For example, human rights protections for provincially regulated workplaces in Ontario are provided under the Ontario Human Rights Code. Other provinces include:
- Human Rights Code of British Columbia.
- Alberta Human Rights Act.
- The Human Rights Code of Manitoba.
- The Saskatchewan Human Rights Code.
- New Brunswick Human Rights Act.
- Nova Scotia Human Rights Act.
- Newfoundland & Labrador Human Rights Act.
The Canadian Human Rights Act provides human rights protection from discrimination for federally regulated employees. Some examples of federally regulated workplaces are telecommunications, interprovincial transportation, and broadcasting.
Further to human rights legislation, employers have a duty to provide a healthy and safe workplace in accordance with occupational health & safety legislation. This extends to creating a safe work environment that promotes employee wellbeing and resources to ensure managers are trained to respond to an employee’s mental health issues.
Examples of Mental Health Discrimination at Work
Below are common examples of employees being discriminated against based on mental health:
- An employee is disciplined for being absent from work because of their depression.
- A policy that directly or indirectly excludes an employee based on their disability.
- Jokes or comments about an employee’s mental health.
- Unwanted questions about someone’s mental state.
- Spreading rumors about an employee’s mental health.
Can Employers Discriminate Against Mental Health?
It is illegal for employers to discriminate against mental health in the workplace. Employers have a duty to accommodate under human rights legislation, to the point of undue hardship.
A duty to accommodate means you have an obligation to adjust workplace rules, policies, or practices to enable an employee to participate fully. Additionally, it is your duty to remove barriers that employees with disabilities may face.
The employee also has a very important role in the accommodation process. The employee is responsible for cooperating, sharing information, and finding resolutions in implementing an accommodation plan.
In addition to the duty to accommodate, employers should be aware that complaints of anxiety, depression, and stress may trigger a duty to inquire. A duty inquires involves you asking the employee questions if they are not acting like themselves. An employer who recognizes that an employee is not acting like themselves cannot turn a blind eye and must ask if the employee needs additional support in the workplace.
Failing to accommodate an employee with a mental health disability may amount to a breach of human rights legislation and result in a legal claim being filed against you.
What Can I ask When Accommodating an Employee?
When an employee requests accommodation because of a mental health concern, it is important that you obtain the relevant information so you can fully support them.
Employees are generally expected to provide you with:
- Limitations or needs associated with the disability.
- What duties the employee can and cannot perform.
- The types of accommodations the employee may need to allow them to fulfill their duties comfortably and competently.
When asking the employee for information regarding their disability, the information requested must avoid intruding on an employee’s privacy while still providing enough information to support them. For example, you are not allowed to ask the employee for a medical diagnosis, medication list or treatment plan. Employees have a right to privacy regarding their health conditions.
Do I Have to Treat the Employee Through Their Mental Health Concerns?
An employer is not required to treat an employee’s mental health issues under the duty to accommodate.
Employers are not qualified to provide counselling, treatment, or medication to an employee. An employer may suggest the employee speak with a qualified professional familiar with treating mental health disabilities.
Tips to Prevent Mental Health Discrimination at Work
To ensure that you do not intentionally or unintentionally discriminate due to mental health, here are a few tips you can action to create an inclusive workplace:
- Ask the employee what changes they would like to see implemented.
- Be open to all the employee’s suggestions.
- Create a supportive working environment in which employees feel able to openly discuss their mental health issues without fear of reprisal.
- Regularly review any accommodations made to ensure that they are working.
- Take steps to create a psychologically healthy workplace.
- Develop a mental health policy for your workplace.
Get Advice on Mental Health Discrimination with BrightHR
As an employer, it is best to take a proactive approach when dealing with an employee’s mental health concerns. This can maintain employee retention and reduce absenteeism.
It is important to fulfill your duties to accommodate and inquire as per the applicable human rights legislation.
If you need assistance understanding your duty to accommodate or information about how to accommodate mental illness, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.