12. Employment

There is still a stigma to mental health in the workplace. As a 40-year employee I have spent more energy hiding this disorder than I have in advancing my career. – Survey respondent

Work, paid or unpaid, is a fundamental part of realizing dignity, self-determination and a person’s full potential in society. In Ontario, people are protected from discrimination based on disability in employment. Employment includes paid employment, volunteer work, student internships, special job placements, and temporary, contract, seasonal or casual employment. Many consumer/survivors or people with addictions expressed their desire to work or volunteer, but could not without the accommodation they needed. Negative attitudes and stereotypes about people with psychiatric disabilities and addictions can compound other employment barriers such as lack of education or employment skills training. 

Box: The Convention on the Rights of Persons with Disabilities recognizes the right to work and the opportunity to make a living. This requires that workplaces be inclusive and accessible to persons with disabilities. By ratifying the CRPD, Canada has agreed to promote the right to work for people with disabilities, including prohibiting discrimination based on disability with regards to hiring and career advancement; promoting employment opportunities in the labour market; and protecting the rights of people with disabilities on an equal basis with others, including ensuring equal pay for equal value, and promoting safe and healthy working conditions.[96] End Box.

12.1. Systemic and societal issues

a) Unemployment and underemployment

Twenty years of no work is too much when I was able to work the whole time. – Survey respondent

We heard that discrimination and loss of jobs, long periods of unemployment, low education levels, or symptoms related to disability can make it very difficult for people with psychosocial disabilities to enter or re-enter the workforce. This was especially true for people with severe disabilities. People with mental health issues and addictions have unemployment rates higher than the general population and people with other types of disabilities. Less than half of people with “emotional disabilities” are in the labour force at all (either looking for work or employed).

In 2006 in Ontario, 74% of people who did not report having a disability took part in the labour force compared with 34% of people with emotional disabilities and 35% of people with other types of disabilities.[97] The Kirby report cites surveys that show that between one-third and one-half of people with mental illnesses report being turned down for a job for which they were qualified, experienced dismissal, or were forced to resign.[98] As well, people with severe or very severe disabilities as a group appear likely to be either unemployed or employed in part-time, low-income positions, compared to people without disabilities.[99]

CMHA Ontario says that when persons with mental health issues do enter the workforce, they are relegated to low-wage jobs, which results in cycling back and forth between social assistance and unstable work. Several people described their experiences in low-paying, low-skilled jobs with few prospects for advancement or stability. Ontario Shores Centre for Mental Health Sciences (Ontario Shores) pointed out that without stable housing, employment is difficult to secure.

We also heard that when people are denied accommodation in the education setting, this will affect their employment opportunities. Barriers faced in the education system may also lead to low levels of literacy and education achievement, which will affect employment opportunities as well as the ability to locate and access services that will improve people’s skills.[100]

People said that to take part in the employment sector, they needed support in employment education, re-skilling and training, and workplace programs, not just therapy and counselling. In a discussion paper on employment, the Centre for Addictions and Mental Health (CAMH) and CMHA Ontario say that critical factors need to be addressed in this area, such as:

• Eliminating discrimination in education and employment practices, including policies and practices that affect employment opportunity
• Increasing opportunities for supported employment
• Reforming federal and disability income programs to remove unintended disincentives to accessing employment.[101]

b) Social assistance and employment 

We heard from many people about systemic problems with social assistance that pose significant barriers to transitioning people to paid work. One of the biggest concerns is that ODSP payments are reduced by half the amount of net earnings from work, making it difficult for people to financially benefit from paid employment, particularly if the work is only part-time or at entry level. Other barriers in the design and delivery of social assistance benefits are covered in Section 13.4.c).

c) Police record checks and vulnerable person screening

Horizons Renaissance, among other consultees, reported that systemic barriers to employment were created by having non-criminal contact with police recorded and disclosed as part of a police record check. Police records are created and document mental health information when police take someone to hospital under the Mental Health Act. As part of a job applicant’s background check, this information can then be released to potential employers, volunteer agencies, or education programs that work with vulnerable clients. Many people reported having been denied job, volunteer and education opportunities because their police background check revealed that they had a mental health disability. We also heard that people who have been apprehended under the Mental Health Act have been denied entry into the United States.[102] Police record checks contribute to negative assumptions about mental health issues, because they feed into stereotyped assumptions that people with mental health issues are a risk to the public (CMHA Ontario).

My husband called an ambulance to take me to the hospital; he was concerned for my welfare and couldn't drive me himself. I went willingly. Now I have an "apprehended under the Mental Health Act" on my vulnerable sector screening, with no further explanation. I am currently unemployed; the sector I work in is the non-profit sector and they almost always require a vulnerable sector screening as a condition of employment. In this competitive job market, I believe it's a disadvantage to me to have this on my vulnerable sector screening but my depression almost five years ago in no way makes me a danger to vulnerable clients. – Survey respondent

In 2011, the Ontario Association of Chiefs of Police (OACP) released guidelines on police record checks that recommend removing references to a person’s disability, among other safeguards.[103] The OHRC and other agencies, such as the PPAO, support the new guideline, as it better protects people’s privacy and human rights while still promoting community safety.[104] The Ontario Provincial Police has begun to implement the guideline.[105]

Recommendations:

20. The OACP and other agencies should actively promote implementation of the OACP police record check guideline across police services, vulnerable sector agencies and other employers including the Government in Ontario.

21. The Mental Health Commission of Canada and the Canadian Association of Chiefs of Police should promote the principles of the OACP police record check guideline with police and vulnerable sector agencies in other Canadian jurisdictions.

22. The Ontario Police College and the OACP should organize training and enhance their existing training on the police record check guideline. The OACP should oversee evaluation of the guideline, with community stakeholders and disability groups. After the guideline is evaluated, the Government of Ontario should consider whether legislative changes are needed to make the guideline more effective. 

OHRC commitment:

C15. The OHRC will raise the issue of the disclosure of mental health information that prevents people from entering the United States, with the Canadian Human Rights Commission.

12.2. Taking part in the labour force

a) Hiring processes

There are significant barriers during the hiring and employment process that prevent people with mental health issues and addictions from getting a job. Gaps in employment history due to periods of disability may be hard to explain during the employment process and may create a barrier to being hired. We heard that the employment recruitment process may be set up in a way that disadvantages people with mental health issues or addictions, particularly people who live in poverty. For example, online recruitment processes are out of reach for applicants who do not have access to a computer. As well, job testing and questionnaires may disadvantage people who have cognitive disabilities if accommodation is not supplied.

People told us that during the interview process, employers may make judgements about a job seeker’s ability to do the job based on their appearance, which may be affected by the side-effects of medication, symptoms of disability or poverty-related factors. These judgements may contribute to not hiring someone for a job. If people have lost their jobs previously due to disability-related behaviour that was not accommodated, they may not have employment references needed for future positions.

We heard about employment processes that asked questions about people’s medical history, including a history of psychiatric treatment, list of hospitalizations and medication, for jobs that did not require them, such as non-safety-sensitive positions. Canadian Auto Workers (CAW) said that it was aware of employers requiring pre-employment drug tests, which it felt was problematic. For more information about the human rights guidelines around this issue, see the OHRC publication Human Rights at Work, 3^rd Edition (Section 6d).

Several people said that they had to hide their past experience volunteering or working for a consumer/survivor initiative, a mental health agency, in a peer support role, or even gaining vocational experience through a program designed to assist people with mental health issues, because this information could indicate that they have a mental health issue. They feared it would result in denied employment opportunities.

We also heard from employment agencies and several job developers who find employment for people with psychiatric disabilities. The job developers told us that some employers will say that they do not want to work with people with mental health issues, or they hold negative stereotypes about people’s ability to work.

The Ontario Public Service – HROntario (OPS) recommended that each organization establish human rights policies and guidelines that comply with the Code. To promote hiring free of discrimination, it recommends barrier-free ads, clear and objective selection criteria based on the essential job duties, offering accommodation when requesting interviews and establishing un-biased interview panels trained to be objective when scoring candidates’ responses. The OPS said that it is developing tools and resources for managers and staff to reduce negative attitudes about people with mental illness.

b) Disclosing a disability

Both individuals with mental health and addiction disabilities and employers told us that they need clarity on what disability-related information an employer is entitled to know during the application process, and on the job. Many people did not know that they generally do not have to disclose their diagnosis to an employer.

Because of negative stereotypes associated with mental health issues and addictions, many people said they feared disclosing their disability in their employment.[106] Even if they required job-related accommodations, people were reluctant to say they had a disability because they feared discrimination, or their performance being judged on the basis of their disability, instead of their contributions at work. Some people may be concerned that their ability to get disability or life insurance will be affected. For many, these concerns were based on prior experiences of losing jobs or being treated inequitably at work after revealing their disability.

Recent amendments have been made to the Occupational Health and Safety Act (OHSA). The OHSA‘s workplace harassment and violence prevention provisions lay out the obligation for employers to assess workplace risk. Employers must also warn workers about the threat of violence from individuals that the worker could encounter during the course of their work, including from other workers, if the person has a history of violent behaviour and there is a risk that another worker could experience physical injury. However, employers and supervisors must not disclose more personal information about the risk than is necessary to protect the worker from physical injury.[107]

We heard that the rules around risk assessments and disclosure of personal information about employees may negatively affect people with psychosocial disabilities if they are applied improperly, especially if employees with past, present or perceived mental health issues are assumed incorrectly to be a danger to other workers. In addition, an employee’s awareness of the OHSA disclosure requirements may create another inadvertent barrier to telling their employer about a psychiatric disability, particularly if they think employers are not appropriately applying the rules. This issue requires further monitoring to make sure that OHSA requirements do not have an adverse impact on people with psychiatric disabilities or addictions. 

OHRC commitment:

C16. The OHRC and the Ministry of Labour will discuss the impact of disclosure requirements under the OHSA on people with mental health issues, and consider how this issue could be monitored and addressed.

c) Inequitable treatment on the job

Some people described their employment experiences positively, telling us about employers that were responsive and respectful of their human rights based on disability. However, others reported how they were treated inequitably at work due to experiencing a psychiatric disability or addiction, which may or may not have been accommodated. We heard repeatedly how people had a change in their job duties or total restructuring of their positions after coming back from a disability-related leave or after their employers found out they had a disability. People reported experiencing demotions, their hours being decreased, changes in job assignments, and dismissal. We heard that employers may assume that people with psychosocial disabilities lack the ability to do their jobs, are unreliable, or cannot handle the stress of the workload, particularly after a disability-related leave.

Paternalism is the same with people with mental health issues as people with physical disabilities. It comes from good intentions and trying to protect people. The message should be, if you’re in management, “how can I help you be successful in the job that you’re hired for?”, and to use that mindset, as opposed to, “how can I protect you from overwork?”  – Workplace Relations Specialist

Consultees described other types of inequitable treatment that people with psychosocial disabilities may be exposed to at work:

• Being isolated at work after an accommodation (for example, having one’s desk moved to another area, or co-workers or managers not speaking with the person anymore)
• Being denied opportunities for training, promotion or privileges afforded to their colleagues
• Being given work that is unchallenging after a disability is known
• Having their contribution at work minimized compared to others’
• Being held to higher standards and penalized for failure. 

One roundtable participant in Windsor described going back to work after an episode of illness. Initially, the employer was supportive. However, she said the employer wanted her to sign a contract to say she would be able to attend work consistently for the next month. Due to the immense pressure of the contract, she had another episode and was asked to resign from her job.

The Ontario Nurses’ Association (ONA) submitted specific concerns about systemic barriers that exist for nurses with mental health issues. Under the Health Professions Procedural Code, the College of Nurses of Ontario can place terms, conditions and limitations on a nurse’s certificate regarding their ability to practice if they have a mental health disability. The ONA said that this procedure is not tailored to an individual nurse’s circumstances. It said these terms create barriers to employment because employers or potential employers may not be willing to hire nurses or accommodate them to the point of undue hardship once the conditions are known.[108]

OHRC commitment:

C17. The OHRC will approach the College of Nurses of Ontario and any other relevant stakeholders to remove barriers that prevent nurses with mental health disabilities from accessing employment. The OHRC will consider using its mandate, which could include building partnerships, conducting public interest inquiries, intervening in cases, and/or pursuing Commission-initiated applications to address this issue. 

d) Harassment and poisoned environment

My employer supported my attendance at a drug treatment program. I'm now a "recovering" alcoholic with four years of sobriety. However, the director of human resources continues to belittle me with unprofessional remarks and "jokes" about alcoholics. This is totally inappropriate behaviour for someone in a human resources role.  – Survey respondent

Several people talked about being subjected to unwelcome comments or actions at work by managers or co-workers in response to their disability. Comments and conduct raised included inappropriate jokes, questions or references to people’s disabilities, medications or accommodation needs, inappropriate disclosure of people’s disabilities to other coworkers who did not need to know, or excessive demands for unnecessary medical information. Many said that co-workers made unwelcome remarks, particularly about work that had to be redistributed because of an accommodation. Some people said that they left their jobs because of harassing comments.

I have endured comments from managers such as being called "cripple" or "people with mental health problems have a screw loose." Managers have targeted me because of my workplace accommodation and have openly discussed my accommodation with my peer group. Members of my peer group are often told that their "less preferable" work assignment is my fault because I am accommodated.

            – Survey respondent

I disclosed my disability to one of my supervisors at a place I volunteered at and she started referring to me as "the one with bi-polar" when talking to other people.  – Survey respondent

We heard that social isolation may also be a form of poisoned environment, where people are repeatedly excluded at work by managers or co-workers. The process can have subtle but very negative consequences. Mental Health Works, which provides training on mental health and employment issues, applies the concept of workplace “mobbing” to people with psychiatric disabilities, and describes how they may be overtly, covertly or even unintentionally ostracised and excluded over a period of time, causing their self-esteem to erode.[109] Mental Health Works described this experience as “long slow, deadly constructive dismissal.”

We also heard that employers need more guidance on how to protect the privacy of an employee with a non-evident disability while addressing other co-workers who may react negatively when they are asked to assist with an accommodation. Employers also need information on how to respond in situations where disability-related behaviour causes conflicts in the workplace. The Ontario Public Service said that it requires support from the OHRC to address the discriminatory attitudes of co-workers that the employee is afraid to raise with management.

e) Special employment and special programs

People spoke about both the advantages and disadvantages of special employment supports for people with psychosocial disabilities from a human rights perspective. Special employment support programs exist across the employment sector to address the systemic inequality and historical disadvantage that people with mental health issues and addictions face when finding work, many with funding from the Ministry of Health and Long-Term Care. These programs target employment for people with mental health issues or addictions. Generally speaking, these employment practices could be protected under human rights legislation as “special programs” or “special employment.”[110] Some of these initiatives include:

• Supported employment: Programs that help consumer/survivors or people with addictions secure paid employment. People receive flexible and individualized support and training as required on the job.[111]
   
• Consumer/survivor initiatives (CSIs): Self-help groups, alternative businesses or support services run by people diagnosed with mental illness, for people diagnosed with mental illness. There are a large number of funded and unfunded consumer/survivor groups in Ontario, including patient councils and CSIs. They provide a wide variety of supports, both employment-related and non-employment-related, in non-hierarchical settings.[112]
   
• Employment equity programs: Employers may establish their own employment equity programs, to help them increase the representation of people with disabilities (including psychiatric disabilities and addictions) in their workplace.[113]
   
• Special employment: Positions with a core job requirement of lived experience of a mental health issue or an addiction (e.g. an addictions counsellor). One prominent example of special employment is peer support. Peer support is a form of self-help that includes one-to-one relationships between people who have had similar experiences. Like self-help, it is a system of “giving and receiving help founded on key principles of respect, shared responsibility, and mutual agreement of what is helpful.”[114]  Some peer support workers are unpaid, and some are paid, and work in CSIs or mainstream mental health agencies or hospitals.

These programs or jobs may overlap. For example, many CSIs hire paid or volunteer peer support workers, or may provide supported employment. Many of these initiatives capitalize on the specific expertise and skills that people hold by virtue of having a disability, or having navigated systems that serve people with mental health disabilities or addictions.

[Peer support workers] are as important as any other mental health work, yet this best practice is being implemented very rarely. These jobs are important ways that mental health and addictions consumers contribute to a positive consumer perspective in the mental health and addictions systems. It is also a way to be a whole person within these systems as you don't have to hide a part of you. Instead, your lived experience is an essential part of your job. It is a burden to have to hide your lived experience and the special expertise and experience you have to offer. – Survey respondent

The Ontario Restaurant Hotel and Motel Association spoke of the positive benefits of supported employment for employers. It said that through a partnership with a job development agency, the Ontario Job Opportunity Information Network, the restaurant, hotel and motel industry has had much success hiring qualified workers with disabilities who have been traditionally denied employment opportunities. 

Even though these programs are intended to reduce disadvantage for people with psychiatric disabilities and addictions in the employment sector, we were told that human rights concerns still arise.

We heard that there is far more recognition than in the past of the important roles that peer support workers play in different mental health settings. Many new peer support positions are being created. But there were concerns that peer support workers may be subjected to different terms and conditions of employment than other workers in an organization. Concerns were also raised about the “tokenistic” nature of peer support workers’ responsibilities; they may be asked to do work that is not meaningful or does not use their skills, or they do not experience the same level of respect as other workers.

One employment worker said that some community mental health agencies and hospitals post short-term contracts (six months) for peer support positions that are fully funded - something which is not done for other positions. She attributed this to misperceptions that peer support workers, due to having disabilities, are not reliable or dependable. As well, peer support workers may be given limited or the least desirable work hours at an agency, receive little or no training or supervision, or receive training that is unpaid. In some agencies, peer support workers may be paid only an honorarium.[115]

Concerns were also raised that peer support work, supported employment and employment at CSIs tend to be low-paying, part-time, and come with few benefits, compared to other paid positions that are not targeted to people with mental health disabilities or addictions. In a 2009 report on CSIs, the Ontario Federation of Community Mental Health and Addiction Programs noted that some CSIs received less funding for full-time positions compared to other community mental health providers.[116] All of these factors may perpetuate systemic inequality for consumer/survivors and people with addictions by concentrating people in underpaid work.

Some people reported situations where people with psychiatric disabilities and addictions were paid a nominal amount, lower than minimum wage, for activities they did while they were in hospital. These types of programs might be exempt from the Employment Standards Act if they are part of a rehabilitation program.[117] People raised questions about the point at which paid work done by consumer/survivors becomes employment that should be subject to the same standards as other work.

Recommendations:

23. The Government of Ontario, the private sector and the non-profit sector should create new opportunities for special employment, supported employment, alternative businesses, employment equity practices and other special employment programs for people with mental health issues and addictions.

24.Organizations that fund special employment or supported employment programs, and organizations that have special employment or use supported employment programs, should review their funding and employment policies and remove any inequities that expose people with psychosocial disabilities to different terms and conditions of employment from those of employees doing comparable work that do not take part in these programs.

25. The Government of Ontario, the private sector and the non-profit sector should review their hiring, promotion, retention, discipline, accommodation and termination policies to remove discriminatory impacts on people with mental health disabilities and addictions to ensure equal opportunity.

f) Workplace stress, mental health and discrimination

A theme that emerged throughout the consultation was the link between stress – either because of workplace bullying, high job demands, or harassment and discrimination based on Code grounds – and mental health and discrimination. Stress itself is not considered a disability under the Code; however, it is widely accepted that stress can cause or contribute to mental health and addiction disabilities, such as post-traumatic stress disorder.^[118]

The Office of the Worker Advisor argued that it is discriminatory that chronic mental stress is excluded from benefit coverage under the Workplace Safety and Insurance Act, 1997 (WSIA). Workers are eligible to receive compensation if workplace factors are a “significant contributing factor” in the development of a physical injury. In the case of mental injuries, a worker’s injury must also be “an acute reaction to a sudden and expected traumatic event.” A worker is not entitled to benefits for mental stress caused by an employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.^[119] A recent decision at Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) expanded the scope of entitlement for traumatic mental stress. A real or implied threat to a person's physical well-being and a diagnosis of post-traumatic stress disorder are not required to find entitlement to traumatic mental stress benefits.[120]

In Plesner v. British Columbia Hydro and Power Authority, the British Columbia Court of Appeal found that portions of the BC Workers Compensation Act, when combined with the policy on eligibility for compensation for mental stress, were unconstitutional, because it forced workers with purely mental injuries to meet a significantly higher threshold for compensation than was required for workers with work-related injuries that were purely physical in nature.[121] Following this decision, the BC government proposed amendments to its Workers Compensation Act which, if passed, will broaden coverage for mental stress conditions arising from significant or ongoing work-related stressors.[122]

Recommendation:

26. The Government of Ontario and the Workplace Safety and Insurance Board should change the WSIA and the policy provisions governing workplace insurance benefits to reflect recent legal decisions. They should ensure that there is equality of benefits for people who experience physical disabilities and people who experience mental health disabilities as a result of workplace incidents. 

12.3. Employment and the duty to accommodate

a) Creating an inclusive environment

Section 2.4 laid out the duty to design inclusively and remove barriers to participation for people with disabilities. In terms of employment, people described how workplaces are not typically designed to consider the needs of people with mental health or addiction disabilities. For example, although some workplaces have adopted flexible scheduling, we heard that many workplaces are not designed to allow for people who may miss work because of periods of disability. This makes it hard for some people to maintain even part-time work.

As well, people said that many workplaces are designed with the idea that people are able to work long hours under high amounts of stress. This requirement can affect some people with disabilities, including those with psychosocial disabilities. People may find themselves overlooked for promotion if they cannot meet expectations to work long hours in highly stressful work, or need performance standards to be modified as a form of accommodation. At the same time, employers are entitled to productive employees and to develop standards and targets that meet their organization’s objectives.

We also heard that people with psychiatric disabilities or addictions can have different ways of completing the work that may not fit mainstream work practices. One consultant on mental health and employment said that jobs need to be designed for people’s skills and how they best do the work to maximize people’s contributions. To achieve true equality for people with disabilities, we heard that flexibility in work arrangements and standards needs to be built into employment opportunities and expectations.

Box: The OHRC heard that in many workplaces, drinking alcohol is a big part of the work culture. Such a culture may create automatic barriers to people with addictions who may be in recovery, especially when drinking with colleagues, superiors or clients helps to advance a person’s career.  End Box.

The organizational culture of many workplaces was also seen as excluding people with mental health issues and addictions. In general, both employers and employees told us that there is a high degree of discomfort and confusion talking about mental health issues at work. Some said that the lack of dialogue about mental health issues in the workplace contributes to an unwelcoming environment, and to perceiving people who have mental health issues in a negative light. This in turn contributes to barriers in the recruitment or retention process, and to not adequately responding to issues of harassment or hostile treatment.

b) Accommodating individual needs in employment

People repeatedly raised concerns about their own experiences, or the experiences of other people with mental health disabilities and addictions, who received inappropriate or no accommodation in the workplace. This is happening even though it is more and more common for workplaces to have disability accommodation policies, provide disability benefits, work with third-party disability agencies to return employees to work after disability leaves, and involve unions in the accommodation process. Employers acknowledged the duty to accommodate employees with psychosocial disabilities, but said that this can sometimes be challenging when trying to meet the needs of the business. One employer said that its managers may not be consistently implementing workplace policies with employees with mental health issues or addictions compared to other employees.

The types of accommodations required by employees with psychosocial disabilities, depending on individual circumstances, could include:

• Flexible working hours
• Longer training periods
• Supports such as job coaching
• Adjustments to the ways information is communicated
• Short- or long-term leaves of absence
• Job sharing arrangements
• Modified production standards.

Both Mental Health Works and the Great West Life Centre for Mental Health in the Workplace provide a list of the most common types of accommodations on their websites.[123] Employers say that they found using extended support systems (such as employee assistance programs or “EAPs”) beneficial for employees who need support. 

The CAW was concerned that employers rush too quickly to assist a worker with disability benefits, without considering whether they could be accommodated and can perform the essential duties of the job. Such actions can have negative effects on workers. The Human Rights Legal Support Centre (HRLSC) also said that some claimants have alleged they have been denied long term disability insurance because they can do the work if accommodated, even though the accommodation is being denied by the employer. In other situations, employers use the denial of insurance benefits as a reason to deny that accommodation is required.

c) Privacy, autonomy and the duty to accommodate 

The privacy of employees’ medical information was a concern for many (see section 10.1.for more information). Sometimes requests for information move beyond privacy into a person’s right to self-determination and to control their own care. We heard that there is a trend in human rights claims that allege that third-party disability companies expect to be informed of employees’ full diagnoses, prognoses and treatment plans, and want ongoing verification that people are “medication compliant” (HRLSC). Some employers may want the employee to agree to certain conditions to receive accommodation. These may be seen as intrusive, such as seeing a psychiatrist versus a psychologist for assessment or treatment (HRLSC), or adhering to a certain treatment plan.

d) Performance management, discipline and termination

Organizations and individuals described how employees with mental health disabilities and addictions who need accommodation may instead face discipline or lose their jobs. We heard of situations where employees with mental health issues or addictions were subjected to performance management after coming back from medical leave.

In some cases, people with mental health and addiction disabilities may exhibit behaviour linked to their disability that affects their performance at work, and they are disciplined or dismissed because of it. Employers reported that these situations can be difficult to manage, even if workplace accommodation procedures exist. They told us that employees may not want to disclose a disability even if employers are willing to accommodate. Consultees emphasized that employers have a duty to inquire and offer accommodation if they suspect that discipline may be related to a disability, especially when employees themselves may be unable to identify their needs or may fear being stigmatized if they disclose.

Workers with addiction disorders frequently face discipline, including suspension and discharge, as employers attempt to deal with issues which manifest in the workplace and which arise as a result of these disabilities. Absenteeism, productivity, insubordination and an inability to interact with colleagues are frequently cited grounds for the imposition of discipline in relation to workers living with addiction. All of these behaviours are viewed as culpable misconduct deserving of discipline, but little thought is given to the underlying addiction which is fuelling the conduct. – CAW

In addition, the CAW and others said that “last chance agreements,” in which a worker is to remain free of alcohol or drugs for a prescribed period, are problematic. A breach of the agreement generally leads to the immediate termination of employment. These agreements are subject to the duty to accommodate.[124]

We heard that employers may be reluctant to discuss performance issues or address conflicts when they feel mental health may be a factor. The result is that problems tend to build to a crisis before the needs of employees with mental disabilities are addressed.

Recommendations:

27. All employers should develop human rights policies and procedures outlining their organization’s obligations under the Human Rights Code, including the duty to accommodate people with psychosocial disabilities to the point of undue hardship. Employers should ensure their human rights policies identify that people with mental health issues and addictions are protected under the ground of disability, and eliminate systemic barriers in the workplace (such as in their organizational culture) that may exclude or disadvantage people with mental health issues and addictions.                                       

28. All employers should train their employees and managers on their responsibilities under the Code regarding the human rights issues that affect people with mental health disabilities and addictions. This training should address preventing and responding to discrimination and harassment, systemic issues affecting people with psychosocial disabilities and the duty to accommodate. 

OHRC commitment:

C18. The OHRC will continue to provide education on human rights and the workplace to employers, employees and unions, and will include a focus on human rights, mental health and addictions.

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