Workplace Issues: Employees with Mental Health Disabilities
Zoom Conference Wednesday September 30, 1 PM Atlantic Time
An employee with a mental health disability may be an exceptionally capable and productive member of the workplace. Difficult legal issues arise, however, when the disability affects the employee’s conduct, attendance, performance or ability to communicate the need for accommodation.
A resignation presents a particularly dangerous example. When an employer knows—or reasonably ought to know—that an employee’s resignation may be connected to a mental disability, the employer will have a positive duty to pause, inquire and consider accommodation before treating the resignation as final.
Three Potential Sources of Liability
That said, human rights vulnerability is but one source of potential liability.
There may be three pitfalls actually. These are:
- Human rights; and
- Insurance law obligations imposed upon the employer to assist the employee in making an application for disability benefits as opposed to quitting employment; and
- The law of negligence which may impose a duty on the employer to advise and assist the employee to make an application for disability benefits.
The potential liability in each instance may be gargantuan. One recent case in Alberta set the damage claim for accepting an employee’s resignation when the individual was in a manic state at over $1 million. These three subjects will be reviewed in detail.
Human Rights: Unusual Aspects of a Mental Disability Case
A mental disability is the sole protected human right that imposes an affirmative obligation upon the employer to take affirmative steps to make inquiries. This is a critical distinction.
Take the example of a person who submits a resignation. If the employer believes, or should reasonably be expected to believe, that this person may be suffering from mental health issues, there will be such a duty to make inquiries. The failure to do so will lead to potential liability.
The damages may be gargantuan.
In the recent Alberta decision of Volpi v. Lifemark Health Corp., the Tribunal awarded more than $1 million after finding, among other things, that the employer accepted a long-serving employee’s resignation without adequately inquiring into whether it was attributable to his mental disability.
Volpi submitted his resignation when all signs pointed to him suffering from a mental heath issue. No inquiries were made. This cost the company over $1 million in damages, never mind the cost of unsuccessfully defending the case.
A few, very simple, series of timely inquiries before accepting the resignation, followed by prompt accommodation, would have saved the day, cost the company nothing and saved the working relationship.
In this conference, we will explore these issues:
- What is a mental disability ?
- What are examples of fact situations which have created the obligation to inquire? A review of all precedent cases in which this finding was made.
- What situations have denied this obligation? Similarly, an in-depth review of precedent cases finding no such obligation.
- What type of accommodation is required when the employer does investigate?
- When has accommodation reached the point of undue hardship ?
- What is the range of expected damage claims?
- What can the employer do to prevent these claims by preventive actions?
- What can the employer do when presented with the duty to inquire and has satisfied it?
- How do these issues co-ordinate with Workers’ Compensation claims?
Civil Liability
Courts have, in appropriate cases, imposed liability where an employer failed to provide the information, forms or administrative assistance reasonably required to place a disability claim before the insurer. Liability may arise through principles of agency, contract, depending upon the benefit plan and the employer’s role.
A second line of cases has held the employer liable in negligence for failing to advise the employee to apply to disability benefits when suffering emotionally, typically on a resignation.
These claims have been successfully made for the entire loss of disability benefits, which can lead to significant claims. Civil claims may also lead to additional awards of aggravated and/or punitive damages.
Again, these claims may be easily avoided with proper training.
The Presenter
David Q. Harris, former Employment Law litigation counsel, author of Wrongful Dismissal,
Harris on Employment Law & Workplace Human Rights.