Q: I have a mental illness, and I’m struggling at work. I’ve tried to bring up accommodation, but I don’t think my manager believes me and it is humiliating. How do I make sure my needs are met?
A: The Ontario Human Rights Code (the code) prioritizes the dignity and worth of all people, and its purpose is to provide everyone equal opportunities free from discrimination.
Mental health-related disabilities/illnesses are protected under this code, whether they are visible or invisible.
This protection applies to the following areas: employment, housing, goods, facilities and services, contracts, and membership in unions, trade or professional associations.
That means your employer has a legal duty to accommodate you to a certain legal limit, and you have nothing to be embarrassed about.
Duty to accommodate
There are two components of accommodation: procedural, which is the process of assessing accommodation, and substantive, which is the accommodation itself.
The first step you should take is to seek proper guidance from a mental-health expert or a doctor that clearly outlines what you need your employer to do to support you at work.
Then, approach your employer and explain how your mental illness is impacting your productivity or the way you fulfil work-related duties, backed by the notes provided by your medical expert.
This is required so that appropriate accommodation can be offered to you.
It is important to also request accommodation in writing for your records, while also keeping a record of any responses from your employer.
Your company policy may also outline a process of seeking accommodation.
You need to follow any such policy.
If this doesn’t work, you can file an internal complaint with management or human resources noting that your request for accommodation has been ignored, and that you are once again requesting accommodation.
Undue hardship
An employer is required to accommodate to the point of undue hardship.
To reach the threshold of undue hardship in law, your employer has to show that the cost of accommodation would be unreasonable.
Courts or tribunals will also look at factors such as outside sources of funding, and health and safety requirements with respect to the accommodation requested.
It is very difficult for employers to meet this legal threshold to deny accommodation.
Accommodation may consist of revamping policies, making rules/requirements and work deadlines flexible, as well as insurance benefits.
This indicates that in many cases, it will not be costly to accommodate an employee’s mental health needs.
What to do if your employer continues to not accommodate
If you find that your employer has not made reasonable effort to accommodate you to the point of undue hardship despite your attempts to work with them, you may have grounds to file a complaint with the Human Rights Tribunal of Ontario on the basis of discrimination if you are provincially regulated.
The code also protects employees from reprisal action, or the threat of reprisal from their employers.
That means your management cannot terminate you or penalize you if they are to learn about your complaint.
If your situation grows so unbearable and you want to resign from your role, it would be wise to seek advice from an employment lawyer regarding a constructive dismissal and human rights case before doing so.
It is on you to prove that your working conditions were intolerable and that you clearly requested accommodation.
You will also have to prove that your mental illness qualifies as a “disability” under the code.
As a result, it’s best to be sure that you have a chance at success before engaging in litigation.
