Duty to accommodate and Workers’ Compensation

November 5, 2017

Under Canadian law and specifically duty to accommodate law, employers have to make every reasonable effort to accommodate workers with disabilities, including mental illness in the workplace.

The member you are assisting may need accommodations in the workplace, so they can continue to do their job. Some people need permanent accommodations, but many people with mental health challenges will only need temporary measures to help them stay on the job or ease them back into work. It’s also important to remember that mental illness is often episodic: People with depression don’t feel sad all the time, just as people with other mental illnesses don’t always experience symptoms. Some members with mental illness may need accommodation for a short period of time and then not need it again for years.

Members don’t have to tell the employer their specific diagnosis given privacy law. You should work with your member & their doctor to explain their specific needs & limitations that affect their work to the employer. The member will likely need a doctor’s letter on their needs & limitations.

Depending on your employer, it can sometimes be hard to discuss these issues – especially if you are in recovery from a mental illness. Advocating for your member and helping them talk to your employer will be a key role for union representatives.

Employers have a legal responsibility & duty to accommodate workers. The union and the worker also have responsibilities and the union representative can help a member make sure they understand their responsibilities and clearly communicate their accommodation needs to the employer.

4 examples of changes for accommodation:

Let’s say you have a member experiencing anxiety that is affecting their work. They don’t have to share this diagnosis with your employer. But the member must give them enough information about their needs & limitations in order to be accommodated. Their doctor could say they temporarily need:

  • They have a lot of fatigue and so will need a graduated return to full hours
  • They are less resilient to stress currently and so need to be relieved temporarily of some of your most stressful duties like crisis client calls
  • They have trouble concentrating currently and so will need to temporarily work on long-term projects instead of projects with tight deadlines
  • They sometimes need a break from a noisy work environment, so they may need access to a quiet space for several times a day, when needed

Accommodations based on this information might help you stay in your current job, and they don’t reveal your diagnosis. You can find other accommodation suggestions for mental health issues at http://askjan.org/media/Psychiatric.html

Workers’ Compensation

Most people with a mental illness can be accommodated by the duty to accommodate law. Some workers with a mental illness like PTSD may have their illness be brought on or greatly affected by a workplace incident or a series of incidents. In some provinces there is now specific workers’ compensation coverage for some workers with PTSD. You should talk to your union representative if this is the case and they will help guide you as to whether you filing a workers’ compensation claim is appropriate. There is also coverage in some provinces for workplace violence, harassment, stress or harm to psychological well-being that happens in the workplace– if these are significant factors for your member’s situation then filing a claim for worker’s compensation maybe appropriate.

We are currently in an evolving environment in terms of representing members with mental health issues. Where we are today will be different from where we will be 5 or 10 years from now. The best practices in representing members will continue to evolve and unions will need to keep listening to our members with mental health issue and keep learning how best to represent them going forward.