The Legal Jungle of Workplace Mental Health
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The Legal Jungle of Workplace Mental Health

Managing mental health issues in the workplace can feel like walking through a jungle. Not understanding your legal rights and responsibilities as an employer is like walking through that same jungle, but blindfolded.

Both employers and employees have legal rights and responsibilities when it comes to mental health in the workplace. Having a better idea of what those are and when to get assistance can help to not only take the blindfold off, but turn the jungle into something more familiar and easier to navigate. Not getting assistance can have disastrous consequences for a small business, including a human rights complaint or a lawsuit. It can also have a harmful impact on employees who are struggling with a mental health issue but don’t know how to ask for help.

What do I do if I suspect someone is struggling with a mental health problem?

If you notice an employee acting uncharacteristically, it is your responsibility to ask questions. Mental health problems often show up at the workplace as performance issues: lateness, absenteeism, a change in sociability, not getting work done or poor work quality.

If employers notice these changes in a staff member, they have a legal duty to inquire. Inquiring into the source of these changes is important so an employer can address, and potentially accommodate, an underlying disability. Asking what is going on isn’t easy. If you see changes in behaviour and aren’t sure how to proceed, it is worthwhile to get legal assistance and to send your leaders for training so they are more able to have these conversations.

What do I do if an employee has a mental health problem? 

Employers have a legal duty to accommodate an employee’s disability. In B.C., a diagnosed mental illness is considered a disability. This includes alcohol and drug addiction. Stress, unless it is diagnosed as depression or anxiety, is not a disability.

How do I accommodate a disability? 

Accommodation means that the workplace may need to adapt or change to help the disabled employee continue to work. Both employers and employees have a legal duty to participate in any accommodation.

When accommodating a disabled employee, employers are expected to endure some hardship. Hardship can include any increased costs to the business and make relevant changes to scheduling, duties or expectations for the employee. While employers are expected to make relevant and necessary changes, they are not expected to absorb undue or excessive costs or changes.

Accommodation is different in each situation; there is no “one size fits all” approach. What might work in a large company could be considered “undue hardship” to a small business.

This is probably the most important time for an employer to seek assistance. Failing to accommodate a disabled employee can lead to a finding of discrimination by the Human Rights Tribunal. The Tribunal can then order an employer to pay the employee money to compensate for injury to their dignity and any other losses they have suffered as a result.

What’s the bottom line on mental health in the workplace? 

Get help and seek legal advice if you’re unsure. The Canadian Mental Health Association offers training to help leaders have difficult conversations with their staff to determine when changes in behaviour are a result of a mental health issue.

It’s also advisable to connect to an employment lawyer, like those at Roper Greyell LLP, to ask for advice at the outset so you can be sure to navigate this difficult jungle without worry of legal action. Good legal advice can help employers minimize risks.

Written in Conjunction with: Julie Menten

At Roper Greyell LLP, Julie practices in all areas of labour and employment law, including human rights and privacy. Her goal is to provide practical, innovative and cost-effective solutions to any employment issue. With a background in mental health, Julie is especially suited to provide strategic advice to employers in addressing complex issues, particularly related to disability accommodations, addictions, return to work, discrimination and workplace bullying and harassment. She received her Bachelor of Arts with Distinction in Child and Youth Care from the University of Victoria in 2001 and her Master of Science in Marriage and Family Therapy from the University of Guelph in 2005. She completed her law degree at Western University and received her Juris Doctor with Distinction in 2012.

About Julia Kaisla

Julia Kaisla is the Direector, Community Engagement, at the Canadian Mental Health Association BC Division. The CMHA, BC Division exists to promote the mental health of British Columbians and support the resilience and recovery of people experiencing mental illness.