Labor & Employment Law

Accommodating Mental Disabilities

By Michael Fitzgibbon

Accommodating disabilities is one of the most difficult issues facing human resources practitioners.  Within that broader category is the subset of accommodating mental disabilities.  This is a minefield and anyone who says that it's not is kidding themselves. 

Courts, in Canada, have shown a greater willingness that ever before to step in and look behind the employer's actions and awarding the employee where the Court is of the view that the employer has acted in an objectively unfair manner towards the employee.  We need only look to bad faith damages and punitive damages as proof of that statement. 

Many of the cases in this area arise in circumstances where the employer is dealing with an employee who suffers from a mental or psychiatric condition.

The legal issues are many and anything that the employer does has a human dimension to it.  I've seen employers fall into three categories (these are the top three, not the only three):

1. They are frozen into inaction and allow the employee to "hang out there" because they are worried about the consequences of dealing with the situation
2. They become frustrated and they act in a not well thought out manner with the effect that they expose the organization and, sometimes, those involved in the decision to significant liability.   In other words, they rush the process.
3. They defer to a third party (i.e. the group insurance company or the applicable workplace safety and insurance board) and take their cue from them, rather than independently trying to meet their obligations.

Managing disability claims is always challenging.  But, more than ever and particularly when dealing with mental disabilities, the claim should manage in a careful, deliberate, sensitive and planned out manner.   

A recent Ontario case dealing with the accommodation of mental disabilities is here and mentioned by Donna Seale.  Donna reports that the decision is being appealed by the employer and refers to this CBC article. The Human Rights Commission has a release on the case and also observes that the employer is appealing the decision.  This is not the end of this important dispute. 

Full post as published by Thoughts from a Management Lawyer on January 05, 2008 (boomark / email).