Howard Levitt: Mental health crisis creating challenges for employees and employers alike

Howard Levitt and Stephen Gillman: Companies must be careful when terminating an employee who has disclosed mental health issues

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Howard Levitt and Stephen Gillman

Canada is in the midst of a mental health crisis.

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Near the end of 2023, Statistics Canada released the results of a decade-long mental health survey. The statistics are startling.

Since 2012, the number of Canadians with symptoms of depression climbed by more than 60 per cent, and those with anxiety disorders more than doubled.

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Any number of reasons could be cited. As we see it, the factors topping the list would be pressures related to Canada’s stagnant economy, skyrocketing household debt, the rising cost of living and the aftereffects of the pandemic.

The survey also suggests that those hardest hit by mental health issues are working Canadians in their early and prime working years. The crisis’ continuation will have a deleterious impact on Canada’s economy, with some estimates reaching as high as $50 billion each year.

The obvious consequences to the workplace come by way of lost productivity, increased absenteeism, turnover and swelling insurance costs. To illustrate, a recent study by one of Canada’s leading mental health research centres reckons that every week at least 500,000 workers miss work due to a mental illness.

Employers face other issues, such as assessing the potential damages which could result from dismissing an employee suffering from poor mental health.

Illegal to discriminate

More specifically, federal and provincial human rights laws make it illegal to discriminate on the basis of a worker’s mental health status. Likewise, many workplace human rights complaints involve employee allegations that the employer’s decision to terminate resulted from a request for accommodation or the disclosure of their health status.

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A recent and illustrative example is the Ontario Human Rights Tribunal’s decision in Zameel v ABC Group Product Development. The case involved an employee involved in a car accident only six months following his initial hire. Shortly after that accident, the employee disclosed that he was experiencing mental health issues and suggested that he needed time away from work, and other forms of accommodation.

Prior to the accident and disclosure of his health status, the employee was performing poorly and receiving regular coaching. While the employer did not document its ongoing performance concerns and efforts to correct them, it decided to terminate him based solely upon the poor performance and did so shortly following the accident.

Following his dismissal, the ex-employee claimed he had been discriminated against on the basis of his mental health status and made a complaint to the tribunal. The tribunal determined that the dismissal amounted to a violation of the code and ordered the employer to pay $80,000 in lost wages and general damages. A hefty sum for an employee of only six months, all plagued by performance issues.

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The tribunal particularly noted the employer’s failure to properly document the alleged performance concerns and found that the timing of the termination, shortly following the accident, pointed to the disclosure of a mental health issue playing a part in the employer’s decision. And in human rights law, discriminatory conduct need only be one small part of the employer’s decision-making process to be illegal, this based on the assumption that the employer will never admit its discriminatory motive.

As Canada’s mental health crisis continues to unfold, similar scenarios will routinely present challenges to employers.

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It is important to remember that it is not “illegal” to terminate an employee who recently disclosed that they are experiencing mental health issues. However, an employer must be able to show that the dismissal was entirely unrelated to the employee’s illness. In order to do so, we make the following suggestions:

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  • Respond positively to requests for employee accommodation.
  • Ensure that sufficient documentation is provided to establish that the illness actually exists, as opposed to the blanket acceptance of one-line notes from an employee’s general practitioner.
  • Always document workplace issues related to employee performance.
  • Establish workplace policies that address protocols related to the employee disclosure of a disability, and requests for accommodation.

As always, employers should seek out legal advice before altering any conditions of employment, or dismissing any employee, especially one who has disclosed any type of health issue.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Stephen Gillman is a partner with Levitt Sheikh.

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