Toronto corporate, commercial and civil litigator Bruce Baron says while great strides have been made to reduce the stigma surrounding mental-health issues, some employers still seem to be unaware of their legal obligation to accommodate.
Baron, principal of Gaertner Baron Professional Corporation says now, more than ever, employees need to feel comfortable that they can deal with mental health issues.
“We live in a very stressful economy, and I am seeing more and more mental-health related employment files crossing my desk,” he tells AdvocateDaily.com. “While there may be no obligation on the part of an employee to disclose his confidential mental health with his employer, employers need to be made aware that when an employee does come forward with a mental-health issue, that employee is entitled to receive the same accommodation they would, if they suffered from any other injury or illness.”
He recalls one client who was going through some severe depression and anxiety, exacerbated by a divorce.
“It got to the point where he required some medical attention,” he says. “Having been a longstanding employee, he decided to confide in his employer and let them know he would need a little time off for this, and they fired him.”
Baron details another instance where a young woman was struggling with depression and anxiety related to her being severely overworked at a job in which she carried considerable responsibility.
“She advised her employer that she required time off for health reasons. Shortly thereafter, the employer fired her and pressured her to accept an inadequate severance package,” Baron says.
“Finding herself unable to cope with both her mental health and her legal rights, she opted to focus on her health and accepted the package. The employer now faces liability associated with having its settlement set aside and liability for failing to make reasonable inquiry, failing to accommodate, and damages for discrimination,” he says.
Most employers are aware that they cannot fire an employee who is sick or recovering from cancer, for example, but some employers feel they may be justified in firing an employee with mental health issues because they are no longer fit for the job, says Baron.
“Employers need to be made aware that the term disability is broadly defined by s. 10 of the Ontario Human Rights Code and includes a condition of mental impairment and mental disorder. A review of some recent case law shows that our Courts will generally award between $10,000 and $45,000 for discrimination/disability claims, in addition to damages for lost income,” he says.