By Laura Track, Human Rights Lawyer, May 6, 2020
Part 2 – Duty to Accommodate
In Part 1 of our Mental Health and Human Rights series in honour of Mental Health Week, we talked about human rights protections for people with mental illness. The BC Human Rights Code prohibits discrimination on the basis of mental disability, which includes mental illness. Human rights duty-bearers including employers, unions, landlords, and service providers all have a legal responsibility to respect these protections and take action to ensure that people with mental health issues enjoy a discrimination-free environment in their jobs, tenancies, and access to services.
What does this look like in practice? First, duty-bearers must ensure that no one is subjected to direct discrimination due to a mental illness. Direct discrimination refers to situations where someone is harassed, targeted, or singled out for negative treatment on the basis of their protected characteristics. For example, if a landlord refuses to rent to someone because the tenant was referred by a mental health agency, that could be direct discrimination. Harassing, bullying, or making inappropriate comments to someone because they have a mental health issue, or the harasser believes they do, is also direct discrimination. Employers, landlords, and service providers have a duty to take action to prevent these behaviours, and to respond swiftly and effectively when they arise.
Indirect discrimination, also known as adverse effect discrimination, arises when a neutral rule, policy, or practice creates a disadvantage or negative effect on someone in connection with their protected characteristic(s). For example, an employer’s sick leave policy might provide paid sick days to someone who is ill or injured, but not to someone dealing with a mental health emergency. A strata’s no-pets policy may impact a person who relies on a support dog to help them with their anxiety disorder. The rules may apply to everyone, but they affect some people differently due to their mental health.
These situations give rise to a duty to accommodate. Employers, landlords, and other human rights duty-bearers must take all reasonable steps to address and avoid disability-related harms caused by their policies or practices, to the point of undue hardship. While some hardship, such as expense or inconvenience, may be expected, undue hardship is not required. Where that line is will depend on all of the circumstances. A prompt, open, and transparent response is always the best policy.
Many accommodations can be made easily and at little cost. Some examples of accommodations that would be relatively easy to implement in most situations include:
- Increased flexibility in work hours or work leave for someone dealing with mental health challenges
- Learning about a tenant’s personal support system, and calling a support person if the tenant experiences a crisis
- Facilitating an employee’s access to an addictions program and allowing the person time off to attend
- Depending on the circumstances, job restructuring, retraining, or assignment to an alternative position
In our recent Top Ten Human Rights Tips for Employers during COVID-19, we noted how people with disabilities are particularly vulnerable at this time, and may require additional accommodations to meet their needs and allow them to continue contributing their best work. This is true for employees with both physical and mental disabilities.
Employers should be aware that employees’ pre-existing mental health challenges such as depression, anxiety disorders, and substance use problems may be triggered during this unprecedented time. It’s essential to be flexible and supportive in accommodating employees who are struggling.
The goal of an accommodation plan is to ensure that an employee who is capable of working is supported to do so. The employer’s aim should be to keep the employee at work where appropriate, or to facilitate the employee’s return to work as soon as possible.
Accommodation is a shared responsibility. Everyone involved, including the person seeking accommodation, should cooperate, share information, and look for solutions together. The process must be creative, reasonable and, most importantly, ongoing. Particularly for mental health issues, accommodation is a flexible process that requires continuous communication. There is no one size fits all solution. Destigmatizing mental illness means approaching the process empathetically, without judgment, and with an open mind.
In part 3 of this series, we’ll cover the duty to inquire, which can arise when the employer’s duty to accommodate butts up against the stigma and silence surrounding mental health issues discussed in part 1.