Accommodation for employees with mental health illness in the workplace … isn’t just about hurt feelings, loss of dignity or a feeling of being treated unfair. It is about survival. It can be the straw that breaks you or it can be the hand that saves you. Not being accommodated meant that I had to use all my energy just to cope with the barriers that I identified at work, just to get through the day. At the end of the day, I was so exhausted that I could hardly drive home. – Written submission
Under the Code, housing providers, employers and service providers have a legal duty to accommodate the Code-related needs of tenants, employees and service users. They must make sure that organizations are designed inclusively, and remove any barriers that may exist, unless that would cause undue hardship. The duty to accommodate could involve making changes to organizations’ policies, bylaws, practices and decision-making processes to allow for equal opportunity for people from Code-protected groups. The people seeking accommodation and the organizations providing accommodation both have responsibilities to participate in the process. In many cases, people with mental health issues or addictions will not need accommodation to get or keep their housing or employment, or to access services, but in other cases the duty to accommodate will arise. In these situations, the principles of dignity, individual accommodation, integration and full participation must apply.
Box: Unless it were to cause undue hardship, the duty to accommodate could involve, for example, sound-proofing a rental unit for someone who is sensitive to sound due to posttraumatic stress disorder, allowing an employee time off from work to attend counselling, or making a service deadline flexible because the applicant has been in hospital. End Box
We heard that there is much confusion around the duty to accommodate, for everyone involved. Many people with psychosocial disabilities are unaware of their rights to accommodation. People may be reluctant to say they have a disability and need accommodation, because they fear they will be discriminated against. One person described being so worried about stigma that they quit a job instead of asking for a needed leave of absence.
Organizations need to make sure they explicitly address stereotypes and make their organizational cultures more open to people with psychosocial disabilities. Under the Code, organizations have the ultimate responsibility for ensuring inclusive environments that are built or adapted to meet the needs of people with mental health disabilities and addictions and promote their full inclusion and participation. We often heard how workplaces and services in particular need to be more inclusive, “finely tuned” and accessible to people with psychosocial disabilities.
Organizations told us that they needed clear and concrete guidance on how they can provide accessible services to people with mental health disabilities and addictions. They said that this was true even with the standards of the Accessibility for Ontarians with Disabilities Act (AODA), which describe how all organizations must ensure full accessibility and non-discrimination for people with disabilities.
We heard that accommodating people with mental health issues and addictions is often seen as more challenging than accommodating people with other types of disabilities. Some of these challenges are due to the stigmatization of these disabilities, their often “non-evident” nature and privacy issues that may arise. However, CMHA Sudbury-Manitoulin said that organizations should not assume that providing accommodations to address the needs of people with psychosocial disabilities is difficult or costly. It says that, “[This] is the exact opposite of the reality that accommodations are usually very simple and cost efficient. Lack of knowledge leads to fear and therefore lack of opportunity.”
Organizations told us they need more information about:
- How to meet their duty to accommodate when people may not be able to identify their disability-related needs or take part in the accommodation process due to their disability
- Considering disability as a mitigating factor in situations that would otherwise result in penalizing the person
- How to assess undue hardship if an issue arises due to a disability-related behaviour (for example, a health and safety issue)
- How to balance one person’s right to accommodation with others’ needs and rights.
Consultees said that accommodation providers should publicize their human rights policies so there can be a better understanding of rights and responsibilities. Some pointed out that human rights enforcement is key to ensuring that Code violations do not occur.
7. The Accessibility Directorate should consult with people with psychosocial disabilities and disability groups to evaluate the current AODA standards to see how well they take into account the needs of people with psychosocial disabilities. Based on the feedback from consultees, the standards should be modified to take into account any additional accessibility requirements.
8. The Accessibility Directorate should develop and promote further education materials that show how the AODA specifically applies to people with mental health disabilities or addictions, so organizations understand their responsibilities towards people with psychosocial disabilities.
C6. The OHRC will develop a policy on human rights, mental health and addictions, that will build on its Policy and guidelines on disability and the duty to accommodate. In writing its policy, the OHRC will provide guidance, with examples, on how organizations can meet their duty to accommodate people with psychosocial disabilities at work, in housing and in services. This discussion will take into account the concerns raised in the consultation, the responsibilities of people and organizations during the accommodation process, and the limits of accommodation (undue hardship).
10.1. Identifying accommodation needs
It’s hard to know whether a client knows they have a disability, because it’s stigmatized so much they may not want to disclose. That could prejudice the outcome of their case in court, for example, if the disability becomes known to the judge or the opposing party. Similarly, in court services [clients] won’t want to disclose publicly their disability. Should there be an onus on a person to identify, or does a [service provider] simply notice behaviours, and if so are they just applying stereotypes? – Court services representative
There’s a fine line between accommodation and patronizing. The key is requesting the accommodation and being comfortable to request it, but not having it pushed on you “for your own good” if you’re not looking for it. – Representative from OPDI
The accommodation process usually begins when someone identifies they need accommodation due to a disability-related need. Throughout the consultation, we heard that organizations need clarity on what they can or cannot ask a person with a mental health issue about any potential accommodation needs, taking into account a person’s right to privacy. This was particularly true when trying to “start the conversation” when a person is perceived to have a mental health issue or addiction that is negatively affecting their work performance, tenancy, or participation in a service environment and may require accommodation.
We also heard repeatedly that people with mental health disabilities and addictions were questioned or not believed when they disclosed their disability-related needs, even when they provided medical documentation. Consultees said that people are presumed to be lying about their disabilities to shirk their responsibilities. Accommodation may then be denied on this basis. This was especially a concern for employees with mental health and addiction disabilities.
I was told that mental health issues were not a disability and no accommodation was needed. Therefore, "take the job we are offering or resign." – Survey respondent
We heard that people with mental health issues or addictions struggle to have their disabilities acknowledged in the same way they would if they had physical disabilities, especially about information required to verify their disabilities. The Human Rights Legal Support Centre (HRLSC) said that because of the “hidden” nature of these types of disabilities, it is not always obvious that people are disabled, and people are expected to provide a higher degree of disclosure.
Respect for privacy and confidentiality were identified as critically important. People raised concerns about the amount of medical documentation that may be asked for to support an accommodation request. Because of an imbalance of power between the person asking for accommodation and an accommodation provider, as well as a lack of understanding by both parties of what information is needed for accommodation, people may feel they have no choice but to provide their personal medical information, even if this is not needed for the accommodation. People were concerned that this information can be used in inappropriate ways. The Ontario Secondary School Teacher Federation (OSSTF/FEESO) stated:
Of particular importance to OSSTF/FEESO members are the systemic practices carried out by employers. Many employers regularly attempt to have individuals sign letters of consent allowing for full disclosure from physicians. Forms frequently ask for information about “nervous disorders,” which our members sometimes in a weakened and uninformed state, sign. Employers then sometimes use the information in punitive ways.
We also heard that doctors’ notes, especially from family doctors, are sometimes vague and not current, and may not give the organization the information needed to make an accommodation. The University of Guelph’s Human Rights Office said:
In providing supports for students with mental health disabilities it is sometimes difficult to obtain current and relevant documentation to either confirm a disability or support the request for unique and specific accommodations. This is particularly true when students are waiting to see psychiatrists.
There appears to be a great deal of reliance on medical information to verify that people have a mental health or addiction disability before accommodation is considered. Some people questioned this reliance, noting that organizations should take accommodation requests in good faith, and should focus on the person’s assessment of what they require to be successful. Some highlighted the CIBC disability management program which, in a majority of cases, does not need medical verification of mental health-related disabilities to make a workplace accommodation.
C7. The OHRC will raise awareness with the Ontario Medical Association, the College of Physicians and Surgeons and other relevant stakeholders of how the medical community can support individuals’ requests for accommodation where medical verification of a person’s limitations and needs are required to make an accommodation.
C8. The OHRC will monitor emerging issues related to mental health and addictions through requests for legal intervention from the community, examining the media, networking with community organizations and the Human Rights Legal Support Centre, and other approaches. The OHRC will consider using its mandate to address these issues by, where appropriate, doing public education, policy development, launching public interest inquiries, legal interventions and/or Commission-initiated applications at the Human Rights Tribunal of Ontario.
10.2. Clarifying when the duty to accommodate applies
There is also confusion among organizations and individuals about the legal obligation under the Code to accommodate disability; does this mean that an accommodation provider has to provide care, treatment or counselling to someone with a psychosocial disability or addiction, or ensure their good mental health? This perspective points to a need to clarify accommodation providers’ roles in meeting their duty to accommodate, to make sure that everyone understands how accommodating may be different from providing care.
Many people raised concerns about organizations that deny services or housing to people based on disability or on the complexity of people’s needs. Sometimes this denial may be an example of unequal treatment, or a failure to accommodate the person’s needs to the point of undue hardship. However it may be that the type of service or housing sought is clearly beyond the mandate of the organization and that accommodation may not be appropriate. The OHRC can help by providing further guidance on when and how the Code may apply in these situations.
C9. In its policy on human rights, mental health and addictions, the OHRC will provide guidance on distinguishing the duty to accommodate from providing treatment or care to someone with a mental health issue or addiction. It will also provide guidance on when the Code may apply when organizations deny services or housing to people with psychosocial disabilities.
 Andrea Davis, “DM Diagnostic” (1 March 2006), online: Benefits Canada www.benefitscanada.com/news/dm-diagnostic-8220, retrieved May 3, 2012; David Brown, CIBC’s Disability Management Principles [unpublished slide presentation].