TRURO, N.S. – Keeping its promise of having more informative seminars throughout the year, the Private Motor Truck Council of Canada (PMTC) held its first Atlantic educational seminar earlier this week in Truro, Nova Scotia.
The council teamed up with the Trucking Human Resource Sector Council (THRSC) Atlantic to give attendees of the seminar a look into complex issues facing the trucking industry today.
One of the topics covered in the seminar was how to properly – and legally – deal with employees who have a mental illness.
Kimberley Pochini, lawyer and head of the labour and employment team at Patterson Law Firm, spoke to guests of the seminar about understanding responsibilities as leaders when dealing with employees who have a mental health issue.
She explained that mental illness is a relevant and important topic because of the stigma that still surrounds it today.
“Everyone is pretty comfortable at accommodating physical issues and everybody understands that, “ she said. “And with most physical issues you’ve got something you can look to – like a doctor’s note, X weeks to recovery, physiotherapy. However, unfortunately there is still a stigma around mental health and mental health issues.”
She explained that mental health isn’t as widely understood and most employers fear approaching the topic with an employee because they don’t want to cross any lines and ask too many questions that they believe could trigger or worsen the issue. She warned that by mistreating or mishandling employees with mental illness could be discriminatory – whether intentional or not – and puts employers at risk of a Human Rights complaint.
“In reality, most discrimination is not purposeful,” Pochini said. “But (discrimination) is where you make a distinction, intentional or not, based on a characteristic.”
Examples of this could be assuming an employee is not mentally tough enough for a position when you learn about his or her mental illness, and terminating his or her position or not promoting an employee because you assume he or she can’t handle the stress, she said.
According to reports, Human Rights complaints are on the rise, said Pochini, because more and more employees are becoming aware of their rights thanks in part to the media coverage on this issue. There have been many initiatives – including the Bell Let’s Talk campaign – that work towards breaking down the stigma surrounding mental health issues and making it okay for those who are mentally ill to disclose it to his/her employer.
Mental illness can vary from addiction to drugs, alcohol, gambling, depression or anxiety disorders, Pochini said, and there is a responsibility as an employer to accommodate such mental illnesses.
In the legal world, this is called duty to accommodate which means employers must be flexible in working with employees with mental illness to meet the employee’s needs and to meet the needs of the organization. Such accommodations can include working with the employee to find a work schedule that is manageable for him or her (e.g., Working only four days a week), getting time off for medical appointments, and holding an employee’s position while they seek treatment. Pochini stressed that the accommodation must be based on the employee’s needs and medical information. She also said it should be flexible because of how much mental illness symptoms can come and go.
“This accommodation has to be reasonable, it does not have to be perfect,” she added.
Pochini recalled a time she received a call from an employer whose employee’s mental state required her to work only four days a week, with a three day break, or long weekend. Her employer agreed, and said she could accommodate that and let her work Tuesdays through Fridays. Her employee did not accept her offer and said she needed Friday through Sunday off. In this case, Pochini said, the employer is making her accommodation reasonable – she is still giving her a three day break to recuperate after four days of work.
This accommodation ends when the employer reaches the point of “undue hardship.” Undue hardship, said Pochini is “in a nutshell, it’s going to hurt your business first.”
This means that through these accommodations, your business is suffering. To prove this in a court of law, the employers must be able to show they have considered all the available options and can no longer accommodate the employee’s requests. Undue hardship is different in every case, making it hard to define explicitly, Pochini said.
If you, as an employer, receive a Human Rights complaint from an employee, the case could go to mediation or a tribunal, if the employee can prove that they have been treated unfairly and have been discriminated against. The complaint is investigated and the Human Rights commission decides whether it goes to conciliation or a tribunal. A tribunal involves an adjudicator that hears the matter like a court and then issues a written decision.
“In a hearing, the complaint has to show that it was more likely than not that he/she was discriminated against on the basis of his/her disability,” explained Pochini. “It’s not like criminal court where it’s beyond a reasonable doubt, more likely than not is more than 50%.”
From there, if the board finds that the employer knew or ought to have known of the disability, the burden then shifts to the employer to prove undue hardship.
“If an employee never tells you, has no performance issues… or if they do and they never tell you about a functional limitation they have…if you have no way of knowing about the mental illness, then you cannot be found that you have discriminated against someone on the basis of his/her disability,” said Pochini. “It’s what you ought to have known. So if you’ve had an employee for 10 years and everything was ticking along nicely, and all of a sudden (his/her) performance starts to suffer, and he or she is missing a lot of work or crying at his or her desk…then you ought to have known. You can’t rely on them not telling you…All the investigation has to show is that everyone else knew about the problem, except the boss.”
Employers can successfully defend the case if they prove they accommodated the employee to the point of undue hardship, said Pochini. Employers also have the right to receive medical information which speaks to the impact of the illness on the employee’s ability to work, though the employee must consent to allow access to medical information, she added.
The law surrounding Human Rights complaints is tricky and can get messy if they are mishandled. Often times, said Pochini, when an employer gets a Human Rights complaint they go on the defensive stating poor work performance as the reason for termination.
Pochini warned attendees this is not the way to handle a complaint as your responses are on the record once you receive notice of the complaint, on the phone or otherwise. Instead, she advises employers to seek professional help immediately and gather all necessary documents to prove you accommodated your employee as best you could – to the point that your business suffered.
Employment lawyers, the Canadian Centre for Occupation Health and Safety and Mental Health Works are all great resources to consider if you’re put in this sort of situation, Pochini said.