Canada labour law mental illness accommodating

Mental illness accounted for 30% of short term disability and long term disability claims in 2010 and 47% of all approved disability claims in federal civil service, double the percentage of 20 years earlier, according to the Mental Health Commission of Canada.

(“Code”), to be accommodated by his or her employer up to the point of undue hardship.

Moreover, an employer who dismisses an employee after being told by the employee that he or she suffers from pain, anxiety or depression may be at risk of being found to have discriminated against employee based on “perceived” disability in breach of the Code, even if the employee is unable to prove the existence of an actual disability.

Employers should respond in good faith to an employee’s requests for accommodation for mental illness.

The Policy primarily emphasizes that employees with mental health disabilities should be treated in essentially the same way as those with physical disabilities.

OHRC Policies such as this one are intended to provide guidance on interpreting the Code.

The Policy complements other legislation aimed at reducing barriers for people with disabilities, such as the Update – Compliance deadlines approach for the Integrated Accessibility Standards.” The Policy notes that the following impairments have been recognized under the Code as mental health or addiction disabilities: anxiety, panic attacks, depression, schizophrenia, alcohol dependence and addictions to illegal drugs.

The OHRC explicitly states that this list is not comprehensive.

The employee went on ‘stress leave’ in the summer of 2009, and had advised a manager prior to this, that she suffered from depression.When she returned to work after 2 months’ leave, she again was argumentative, and the employer decided to dismiss her.At no time did the employee request accommodation or inform the employer that she believed her behaviour was related to a disability. Human Rights Code prohibits discrimination in employment on the basis of physical and mental disability.Barriers to managing the return to work process and re-integration into a productive workforce often arise.From a legal perspective, there are obligations under the common law; collective agreements (if applicable), human rights, occupational health and safety, and (potentially) workers' compensation principles should be considered.

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