September 8, 2014 By: Janice B. Payne
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The recent suicide of comedian Robin Williams has brought increased awareness of the fact that mental health issues can touch anyone at any phase of their life, sometimes with tragic consequences. His legacy is the opportunity to talk about the impact of mental health, and other invisible disabilities on a larger and more open stage.

The focus of this post is on mental health in the workplace. Employment is one of the most significant determinants of a person’s mental health and wellbeing. It comes as no surprise that for most of our lives, we spend more waking hours at work than anywhere else1. According to the Mental Health Commission of Canada, work contributes to our self-esteem and provides us with a sense of purpose and belonging, allowing us to feel productive, and providing goals for us to strive towards. The income generated from work is essential to maintaining our stability and independence, as well as support for our families2. For these reasons, unemployment is associated with a significant increase in the risk of suicide3. On the flip side, an unhealthy workplace can also increase mental health problems like stress, anxiety and depression. This makes addressing issues related to mental health in the workplace of critical importance to the health of our communities.

Employers often give lip service to addressing this issue – why not, it’s the current ‘cause célèbre’ – but in reality, few understand what their commitment really means. As a result, employees with invisible disabilities are vulnerable, and often find themselves out of work, for reasons like performance and restructuring, or are simply not rehired at the end of a contract. Others are unable to find work due to reasons such as ‘fit,’ inadequate references or gaps in employment history. The MHCC advocates that, ‘many of our current ways of thinking about the work capacity of people with mental illness, and acting upon the problem, are ineffective.’ The evidence for this is clear. A disproportionate number of up to 90% of people with serious mental illness are unemployed4. It’s not unrealistic to guess that those who are employed, or those with less serious mental health problems, are often under-employed because they are passed over for promotions or compensated at lower levels than their peers. Unfortunately, the valuable skills and expertise that those with mental health issues can offer employers often go unrecognized.

While awareness about mental illness, as well as the stigma that surrounds it, have been increasing dramatically recently through a number of high profile initiatives in Canada, a gap still remains when it comes to mental health in the workplace, and many people still struggle in silence. Stigma and other systemic barriers to employment still exist. While there are certainly exceptions, revealing the presence of mental illness to an employer continues, for the most part, to be ‘career suicide’, especially in competitive professions where it can be viewed as a sign of weakness; this, despite the fact that one in five Canadians will experience a mental health problem or illness in any given year5.

If all of this isn’t compelling enough, there is a good economic and business case for the importance of accommodating invisible disabilities and creating a mentally healthy work environment. Employees are after all, an organization’s most important asset, and turnover is both costly for employers and inefficient. An employer’s bottom line can be significantly impacted by mental health problems through lost productivity and increased rates of both absenteeism and ‘presenteeism’. Mental illness is also the leading cause of short and long?term disability in Canada. According to the MHCC, more than 30% of disability claims and 70% of disability costs are attributed to mental illness6. Promoting a psychologically healthy workplace is also a corporate social responsibility issue. Our community benefits when individuals with mental illness are employed, because they are not forced to rely on disability income support, and studies have shown that they use considerable less health services than those without employment7.

Both the Ontario Human Rights Code and the Canadian Human Rights Act prohibit employers from treating disabled employees adversely because of mental disability, so why are employees with invisible disabilities still facing systemic barriers? The good news is that the laws surrounding mental illness in Canada are evolving, and mental health in the workplace is becoming an important legal and risk management issue for employers to address as a result of increasing litigation in this area8. Employment contracts have been found to encompass implicit terms requiring employers to act in a fair and reasonable manner in the course of the employment relationship as well as at the time of dismissal. From a human rights perspective, employers must provide accommodation for mental illness up to the point of undue hardship. Employers are also being held responsible for psychological safety in the workplace as part of their obligations under occupational health and safety laws, and Canadian courts are becoming increasingly less tolerant of harassment and violence in the workplace.

A good example of a decision where an employer was found to have a duty to accommodate a mental illness is Krieger v. Toronto Police Service Board, which involved a police officer who experienced a traumatic incident involving a struggle with a suspect carrying a handgun during his probationary period, and developed Post Traumatic Stress Disorder (‘PTSD’) as a result. Several weeks after the incident, he overreacted to what he perceived to be a threatening situation and engaged in unusual behaviour, following which he was suspended as ‘unfit for duty’ without accommodation. The Ontario Human Rights Tribunal (HRTO) ordered that the employee be reinstated, and that the employer develop an accommodation policy.

Courts have also awarded increasingly generous aggravated damages for mental distress, as seen in the recent Court of Appeal for Ontario decision in Boucher v. Wal-Mart Canada Corp. where a manager was found to have belittled and humiliated an employee in front of other employees after she refused to falsify a log. The Court upheld an award of $100,000 against the manager for intentional infliction of mental suffering, as well as an award for punitive damages to $10,000. It also upheld the award of $200,000 in aggravated damages, and $100,000 in punitive damages against the employer. This award was considered very high by Canadian standards, reflecting strong disapproval of the manager’s conduct.

So what is the solution? The key to creating a mentally healthy workplace for employers is to first create a commitment amongst senior leaders to a culture that promotes diversity and a respect for differences of all kinds. Policies should be developed and administered fairly, and clear expectations should be set in terms of the use of ‘person-first’ language, which distinguishes the individual from their disability. Employees should understand that work is not the place for offensive jokes or derogatory language, which could inadvertently cause another employee mental distress. This will help to create a workplace without stigma, where employees with invisible disabilities feel comfortable disclosing their disability and are no longer afraid to ask for help. There are many resources to help employers do so, such as the National Standard of Canada for Psychological Health and Safety in the Workplace, which is a voluntary set of guidelines, tools and resources for employers.

Employers should also train and educate their managers and employees to be well-informed about mental health issues and better equipped to recognize and manage symptoms of invisible disabilities. These symptoms include behaviours that are routinely associated with performance and conduct issues like tardiness, absenteeism, fatigue, decreased memory and concentration, impulsivity, unusual ideas or behaviour, as well as displays of anger or frustration. While certain performance standards may seem neutral on their face, they can have an adverse effect on employees with mental illness, who may find it hard to meet these standards, and managers should always consider whether there is a duty to accommodate. In a mentally healthy workplace, blame should take a back seat to a focus on solutions and quality improvement. Training programs, such as those offered through Mental Health Works, a national program of the Canadian Mental Health Association (‘CMHA’) are available, as well as the MHCC’s Mental Health First Aid (‘MHFA’) program, which provides information on how respond to a mental health emergency.

There is reason to hope for employees with invisible disabilities. We have come a long way in Canada towards closing the gap with respect to our collective understanding of mental illness and other invisible disabilities, and thankfully we have effective laws in place to protect them. Those facing mental health issues are gradually coming out of the shadows in greater numbers. What they really need are practical and ongoing employment supports, including job coaching, to help them find and keep meaningful work. This year September 10th is World Suicide Prevention Day. It is a good time for us all to give thanks to Robin Williams for his legacy, and to remember as employers and employees, that we are all connected through shared experiences.


1Mental Health Commission of Canada – http://www.mentalhealthcommission.ca/English/issues/workplace
2Ibid
3Mental Health Commission of Canada – http://www.mentalhealthcommission.ca/English/issues/workplace/aspiring-workforce
4 Ibid
5Mental Health Commission of Canada – http://www.mentalhealthcommission.ca/English/issues/workplace
6Ibid
7Mental Health Commission of Canada – http://www.mentalhealthcommission.ca/English/issues/workplace/aspiring-workforce
8Mental Health commission of Canada – http://www.mentalhealthcommission.ca/English/system/files/private/Workforce_Tracking_the_Perfect_Legal_Storm_ENG_0.pdf

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law