Following the horrific crash of Germanwings Flight 4U9525 on March 25, 2015, the subject of mental health in the workplace has, once again, become a hot topic. Unfortunately, discussions around mental health seem to happen reactively and as a function of tragedy which, in my opinion, bespeaks the current social mood regarding mental health and discussions about mental health. Namely, we still ‘don’t want to talk about it.’ The stigma associated with mental health issues prevails despite public education campaigns and attempts to renorm social mores regarding living with mental health and talking about mental health. Interestingly enough, as demonstrated by the Germanwings disaster, it is the workplace that is increasingly becoming the crucible for this discussion. Our workplaces have increasingly become the intersection where the rights and responsibilities of society (here represented by the employer) and the individuals that make up that society (the employees) are meeting and ultimately framing our personal and public values regarding mental health.
In an article in the May 12th edition of The Globe and Mail entitled Dealing With Mental Illness in the Workplace, employment lawyer Daniel A. Lubin articulates this phenomenon in his assertion that “many Canadian employers are beginning to reconsider the boundaries” of employer rights in “ascertain[ing] the mental health of their employees.” Employers are becoming increasingly aware of their liability to their employees and to the general public on behalf of their employees “in the event of an incident of negligence, violence or worse.” Although the Germanwings air disaster is an extreme case of the consequences of undetected or undealt with mental illness in the workplace, the families of the victims are nevertheless launching a class-action lawsuit holding Germanwings liable for the conduct of their employee. Certainly in Canada, our laws are unequviocal: the mental health of employees is very definitely within the purview of employers.
outlines some basic precepts regarding mental health given the legally-defined relationship of employers and employees in Canada. Here is a brief synopsis:
Duty to Accommodate
Canadian employers may not “discipline, dismiss or otherwise discriminate against employees with illnesses or disabilities . . .and . . .must attempt to accommodate them instead.” However said accommodation cannot be impossible or unreasonable nor should it jeopardize the “safe and reliable” performance of duties.
Duty to Disclose
The obligation to accommodate is not borne solely by the employer. Employees share the responsibility to “make employers aware” and “advise the employer of the disability.”
Duty to Inquire
Where there is evidence that an employee may be “suffering from mental condition”, the employer ultimately has the responsibility to ascertain to what degree and to accommodate the employee
Duty to Prevent Harm
“Occupational health and safety legislation across Canada imposes obligations on employers to provide safe working environments for their employees . . .employers have to take every reasonable precaution in the circumstances to protect . . .their employees’
The article goes on to summarize some pragmatic strategies for dealing with mental health issues in the workplace such as providing information on employee disability insurance or wellness programs, assessing the mental health of their employees should they exhibit “unusual behaviour” and taking action where employees may pose a risk to themselves or others.
*The views expressed by our authors are personal opinions and do not necessarily reflect the views of the CCPA