Bennett Jones
Written by Joseph Blinick, Talia Bregman and Michelle MacGillivray
It is estimated that one in five Canadians will experience a mental health disability or addiction in their lifetime.[1] In light of this staggering statistic, employers are often faced with the challenging task of identifying and accommodating discrete mental health disabilities and addictions in the workplace. In order to assist employers and other responsible parties covered by the Ontario Human Rights Code (the Code) in grappling with this challenging task, the Ontario Human Rights Commission recently issued a policy entitled the Policy on preventing discrimination based on mental health disabilities and addictions.The new policy aims to provide practical guidance to employers in Ontario on how to recognize, assess and accommodate human rights issues related to mental health and addiction. This is an important policy for employers as, under the Code, they have a positive obligation to accommodate employees who are affected by such issues and to ensure that the workplace is an accessible and inclusive environment, free from discrimination and harassment.
The parts of the policy that are particularly noteworthy to employers include a summary of the legal framework under the Code (as well as other relevant statutes), an overview of the employer's duty to accommodate and an explanation of undue hardship as well as other important limits on the duty to accommodate. The policy concludes with the following practical tips for employers on how to be proactive and take steps to limit exposure to potential human rights complaints:
i. Develop a plan to prevent and remove any barriers to employment for people with mental health disabilities and addictions.
ii. Develop anti-harassment and anti-discrimination policies, internal human rights procedures and accommodation policies and procedures appropriate for people with mental health disabilities and addictions.
iii. Provide ongoing education and human rights training to staff to foster a culture that supports the values of the Code.
Although the policy is not legally binding on Ontario decision-makers (e.g. the Ontario Human Rights Tribunal), it will likely carry persuasive weight when determining whether employers have met their legal obligations under the Code. As such, it is important for employers to keep the policy in mind when dealing with mental health issues and addictions in the workplace and to remain vigilant in ensuring compliance with the Code.
For more information, a complete version of the policy can be found on the Commission's website. In addition, we would be pleased to respond to any question you may have about the policy.