What Are My Mental Health Rights at Work?

    Thanks to constantly evolving attitudes and legislation aimed at removing the stigma around mental health issues and barriers to mental health support, there has been a lot of change in how mental illness is viewed and handled in the workplace. 

    There is still work to be done, but there are laws and rights to help protect you if you have a mental health condition that impacts your ability to work or feel you are being discriminated against at work.

    Learn about the mental health rights you have in the workplace and the actions you can take if or when you experience mental illness: 

    The Right to Accommodation and Protection from Discrimination 

    You have the right to know your mental health rights in the workplace. Specialized lawyers like Ertl Lawyers disability and employment lawyers can advise you on your rights, available resources and specific laws that protect you.

    For one, the Ontario Human Rights Code (OHRC) protects employees with mental health disabilities from being discriminated against or harassed in the workplace. Discrimination can include not being hired, being fired or being denied a promotion because of a mental disability. 

    To take it a step further, the OHRC places a duty on employers to accommodate the needs of employees with a disability up to the point that the accommodation becomes an undue hardship on the employer.  An accommodation is a solution agreed on by the employer and employee that allows the employee to complete essential elements of the job. 

    The duty to accommodate is a shared responsibility. Employees have the right to keep their medical information to themselves and not disclose their disability to their employer. However, if an employee needs an accommodation to perform their work, they have an obligation to inform the employer of the need for accommodation and give the employer enough information as is necessary for the employer to provide it.

    It is then the employer’s responsibility to research further if needed and implement the accommodation. Example accommodations include:

    • Flexible work hours and time off
    • Facilitating the employee’s access to assistance programs and benefits
    • Setting achievable performance goals 
    • Creating and implementing an anti-discrimination policy

    An Employer’s Duty to Inquire

    Just because an employee does not disclose that they have a mental disability does not mean the employer can ignore signs that would lead a reasonable person to believe the employee is suffering from a mental condition. 

    Employers have a duty to inquire if there are signs that an employee has mental health issues that affect their health or work performance, such as absenteeism, change in mood or behavior, or lack of engagement. Ignoring this duty or obvious signs of mental distress can result in a claim of discrimination if the employer takes disciplinary action before asking questions that would reveal that the poor work performance was due to a disability that needed accommodation. 

    Mental Health Issues Do Not Excuse Punishable Behaviour

    While an employer has a duty to accommodate and take mental disability into account, they still have the right to performance and behavior requirements. Also, disciplinary action would be justified if an employer can show that poor work performance or misconduct did not result from the employee’s disability.    

    Those are an employee’s mental health rights at work in a nutshell. Speak to an employment lawyer for more information.

    Photo by Yan Krukov 

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