March 23, 2021 by Judith Grimsrud, HRC Advocate
Many Canadians are experiencing increasing levels of stress, depression, and anxiety due to the ongoing pandemic. Worries about unemployment, job security, finances, and exposure to the coronavirus, balancing family and work responsibilities, and the ill-effects of social isolation are significant challenges for many.
From a human rights perspective, it is important for employees and employers to understand when stress and anxiety are considered everyday emotional reactions – which are certainly understandable and deserving of compassion and respect – and when a condition rises to the level of a disability triggering a legal duty to accommodate. It is the existence of a disability, and not just feelings of anxiety or stress, which determines whether an employer has a duty to accommodate under human rights law.
The BC Human Rights Tribunal has said that “stress, in itself, is not a disability for the purposes of the Code.” Similarly, anxiety is a “commonly experienced emotion” and is not, on its own, considered a disability. However, anxiety may be a symptom of a condition that qualifies as a disability, such as an anxiety disorder.
The Tribunal has also said that “the bare assertion that one is experiencing anxiety and depression is not, without more, sufficient to establish a mental disability.” In other words, some evidence will be required to show that the person is suffering from a disability, and is not simply dealing with the common experience of stress and anxiety.
In a case called Matheson, Ms. Matheson filed a human rights complaint alleging that she was subjected to abusive behaviour from a supervisor. She had a history of anxiety and panic attacks as well as depression. On two occasions during her employment, Ms. Matheson informed her employer that she was suffering from “stress.” However, she did not provide any medical information that said she had a mental disability.
The Tribunal dismissed Ms. Matheson’s complaint, stating that “an essential element of a complaint of discrimination in employment on the basis of mental disability is proof that the complainant either had a mental disability… or was perceived to be mentally disabled by the employer.” The Tribunal also said that “workplace stress resulting from an employer investigating alleged performance problems, or from a problematic relationship with a supervisor, is not alone sufficient to constitute a disability for Code purposes.”
The takeaway: by failing to provide her employer with proof of a mental disability, Ms. Matheson was unable to establish that she had a mental health condition beyond “the commonly experienced emotion” of stress. Therefore, the employer did not have a duty to accommodate her.
In Young v. Vancouver Coastal Health Authority and others, Ms. Young alleged that she was fired after developing a mental health disability due to a workplace she described as toxic, hostile, and an environment of unremitting stress. She described circumstances in which she was visibly distressed at work, and experienced significant emotional, physical, and psychological symptoms.
Although Ms. Young exhibited stress and anxiety at work, her complaint was dismissed because she did not provide evidence to her employer that she had a disability which went beyond a commonly experienced emotional reaction to difficult workplace conditions. She did not identify any disability she was suffering from, and had not asked her employer for an accommodation due to a disability.
Lastly, in Vanderveen v. Heritage Steel Sales, Mr. Vanderveen experienced stress and anxiety related to his increasing workload. He told his employer he had too much work and could not handle it all, and asked his employer to reduce his workload due to the stress it was causing him. However, he did not connect his stress and anxiety to any disability, so the complaint was dismissed.
In some situations, an employer has a duty to inquire about the possibility that a mental health condition is impacting an employee’s performance. If the employee’s behaviour changes dramatically, or is “such a departure from the ordinary norms of human behaviour” that it should have alerted the employer to the possible presence of a mental disability, then the employer should have a conversation with the employee about their mental well-being. If the conversation reveals that a mental disability is impacting the employee’s work, then the employer has a duty to accommodate the employee, to the point of undue hardship.
It is an employee’s responsibility to give their employer the information necessary to facilitate accommodation. It would not be fair to hold an employer liable for failing to do something they could not reasonably have known was required.
In cases involving stress and anxiety, it will be essential for employees to provide their employers with some evidence of the existence of a disability, and information about how that disability affects their ability to do their job. The parties can then work together to craft an accommodation plan that will work for everyone.
 Above, note 1.