Disciplining employees who are suffering from mental illness can pose particular difficulty for employers. Although there is a duty to accommodate mental illness in the workplace in the same way as any other disability, misconduct related to a mental health issue is not immune from discipline. Employers are well advised to be aware of the relevant considerations, risks and obligations with respect to managing a disabled employee’s performance. Implementing best practices can help to effectively navigate the intersection between disability and discipline.
Key questions to ask when considering discipline that may be related to mental health issue(s) include:
Does the employee have a disability as defined in the applicable legislation?
At the outset, the employer should consider whether the employee in question has a disability which is protected by the applicable human rights legislation. “Mental disability” is a protected ground in all four Atlantic Provinces and is broadly interpreted to include drug and alcohol dependency, learning disorders, panic attacks, depression and post-traumatic stress disorder.
Sudden changes in an employee’s behaviour or performance may be an indicator that the employee is suffering from a mental disability which may need to be accommodated. Employers are under a duty to inquire if they suspect that an employee may be suffering from a disability requiring accommodation. If a previously “good” employee has started acting out of character, the employer should consider whether the employee’s behaviour could be connected to a mental health issue prior to imposing discipline.
It is not uncommon for an employee to claim that they have a disability only after the employer begins managing the employee’s performance. And, while it is natural to experience a certain level of stress and anxiety when one’s performance is being scrutinized, the issue becomes whether this heightened stress and anxiety rises to the level of a disability protected by the applicable human right legislation.
Ordinary stress, without more, is not necessarily a disability within the meaning of the legislation (see other articles). In particular, stress arising from the workplace investigation of an employee’s poor performance is not alone sufficient to constitute a disability for human rights purposes.
Are the employee’s performance issues related to the disability?
Employees with mental disabilities are not immune from discipline. If there is no connection between an employee’s performance issues and his or her disability, the employer may discipline the employee. A mental disability does not excuse unrelated disciplinable conduct.
However, where there is a causal link (i.e., a nexus) between an employee’s behaviour and his or her mental disability, the employer is under an obligation to consider whether it can provide the employee with accommodations which may, in turn, improve that employee’s performance.
Is accommodation possible?
Where there is a nexus between the misconduct at issue and the employee's mental health condition, the question whether accommodation, to the point of undue hardship, arises. That is to say, even if the misconduct would not have occurred but for the employee's illness or condition, an arbitrator or tribunal may nonetheless conclude that the employee is still responsible for their actions. As awareness of mental health issues increases, so too does the body of labour and employment law dealing with disciplinable conduct and mental health at the workplace. In considering whether accommodation to the point of undue hardship is possible the same considerations apply to mental illness as they do to physical illness (i.e., health, safety, to name a few). The following examples demonstrate the importance of context in establishing undue hardship:
- Reinstatement was ordered in a recent case where there was a direct threat of violence towards other employees on the basis that the violence was a "cry for help".
- Discharge of an employee who stole from the employer to support a cocaine addiction was upheld.
- A grievance related to an employee suffering from a major depressive disorder who threatened to kill his supervisor was allowed.
- Accommodating of an employee who communicated inappropriately with students based on an after-acquired diagnosis of a mental health issue would have resulted in undue hardship.
Although the threshold is high, establishing undue hardship is not impossible. The nature of the workplace, the position held by the employee and impact on the employers' operations are important to consider both when determining what accommodation (if any) is possible, as well defending any resulting complaint.
To minimize the risks associated with managing the performance of employees suffering from mental disability, employers should:
- Provide employees with information regarding community resources and supports, as well as resources available through their employment (employee assistance programs, private insurance benefits, etc.).
- Intervene carefully and address performance issues as soon as possible.
- Consider whether there is a nexus between the employee’s behaviour or poor performance and the alleged mental disability.
- Take an active role in the search for suitable accommodation and all keep records of any alternatives considered or proposed.