1. Accommodating Mental Health Issues in the Workplace
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Paul S. Schwartzman
June 8, 2017

2. Agenda
Duty to Accommodate
Presumptive Entitlement for PTSD
Q&A

3. Duty to Accommodate No Blind Eyes
Right to be free from discrimination and harassment based on mental health disability or addiction
When is it triggered? Employee asks for accommodation. Suspect mental health disability
Low-threshold – whether the employer knew or ought to have known that the employee has disability
Employee does not have to formally request an accommodation or identify that they suffer from a disability in order to trigger the duty to accommodate
Obligations on the employer to take steps if they reasonably ought to have known that an employee was suffering from a disability
Particular to mental health disability. Employees are less likely to request accommodation – afraid of stigma, adverse treatment, maybe don’t realize they are manifesting symptoms.
Have to be alert to behaviours that may indicate mental health disability. As I said at the start – have to learn what behaviours may indicate mental health disability
Look to changes in the employee's behaviour, increased absenteeism, disengagement, extremes in their mood (high highs, low lows), increases in mistakes, lethargy, etc.
low-threshold required to trigger obligations on employer BUT, obligations also exist for employees (and union, if any)
has to be cooperation
Krieger v TPSB
probationary constable developed PTSD after a struggle with a suspect who was carrying a handgun
5 weeks after the incident, he over-reacted when he encountered an intoxicated person
a few days after the 2nd incident, his behaviour became increasingly bizarre in not following orders from his supervisor
he was found in a stairwell sobbing uncontrollably
constable was suspended and later discharged for his conduct
HRTO held that the employer failed to satisfy the procedural duty to accommodate in not making sufficient inquiries about the constable's mental condition and failing to evaluate medical evidence which was subsequently provided
Had the substantive duty to accommodate been complied with, the constable could have been accommodated and remained employed
Remedy – HRTO ordered reinstatement of constable and $35,000 in general damages.
No Blind Eyes
Does employee exhibit atypical or inappropriate behaviour?
Is there a relationship between a disability and the employee's job performance?

4. Procedural and Substantive Duties
Duty to accommodate has procedural (the process) and substantive (the accommodation provided) components.
Can be found to substantively accommodated but failed procedural component
The procedural duty requires an employer to take steps to inquire into an employee's accommodation needs and undertake an individualized investigation of potential accommodation measures to address those needs.
The substantive duty relates to the actual accommodation implemented by the employer, or in the alternative, the reasons why the employer determined such accommodations could not be offered.
Lee v Kawartha Pine Ridge DSB
Worker was called into a meeting to discuss performance issues
The worker suffered mental health disabilities as a result of the meeting
Remained off work on LTD due to "adjustment disorder with stressed and depressive symptoms"
The employee returned to work and was assigned to work at another school
An issue arose when the worker asserted he was incapable of working there
The worker stayed off work and claimed sick pay, filed an HRTO application
HRTO determined there was no breach of the substantive duty to accommodate because the worker's medical evidence did not establish an inability to work at the assigned school
the HRTO held that the employer had breached its procedural duty to accommodate in failing to make inquiries to clarify the medical basis on which the recommendation that the worker not be assigned to a specific school was based
HRTO awarded 3,000 general damages
Conclusion – you can make the right decision but if you go about it the wrong way, you will still be liable

5. Outside sources of funding Health and safety requirements
Undue Hardship
The Code prescribes only three considerations when assessing whether an accommodation would cause undue hardship:
Cost
Outside sources of funding
Health and safety requirements
One of the most frequent questions I get when it comes to accommodation issues is “have I reached the point of undue hardship?”
My answer is often “no,” because it is a very difficult standard to meet, and the onus is on the employer to establish undue hardship; need concrete evidence; can't be impressionistic.
What will constitute undue hardship will vary radically depending on the precise circumstances of the situation. However, it is clear that the employer must be experiencing hardship
Further, what may constitute undue hardship in one circumstance or for one employer may not be identical in other situations
For example, with regards to mental health issues, in many situations it will involve providing an employee with time to attend treatment or medical appointments, while in others it may be something as benign as offering a schedule change to provide the individual with a sense of normalcy or to keep him or her away from other employees
Again this will be contextual and involve a consideration of the workplace in its totality
The employer’s duty to accommodate stops at the point of undue hardship
This is an amorphous term that, again, can only be determined in the context of the circumstances of each case.
High Bar: Document the accommodation process – protects you re. procedural duty (what information did you have? What information did you ask for? What options were considered? Why were options rejected? If cost is the reason for undue hardship defence, budgets, financial statements, costing of implementing accommodation options). Employers burden to prove undue hardship.

6. Limitations on Duty to Accommodate
Section17: “right to be free from discrimination is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements of attending to the exercise of the right.”
Still must show that person cannot be accommodated without undue hardship.

7. Gathering Medical Information
Unusually not controversial. Need enough information to engage accommodation process
But what do you do when you receive a note like this?
An employer's primary interest is in the applicable restrictions or limitations
What specific tasks is the employee medically prevented from performing?
Are there tasks that the employee can perform but only on a limited basis?
What prevents attendance at work?
Employee can refuse to provide medical documentation based on privacy concerns, however there is no right to accommodation in the absence of sufficient medical documentation
Are you ever entitled to Diagnosis? YES – not an absolute rule. Sometimes with psychological disabilities, the diagnosis may be the only way to truly understand the nature of the illness, its limitations and how it impacts the workplace.
-but not a starting point and not entitled if lesser information about the nature and limitations and restrictions enough.
OTHER PROBLEMS - Often dealing with self-reported symptoms – identified by words like "the patient reports", "I've been informed by the patient" etc…
Doesn't eliminate duty to accommodate or definition of "disability".
May point out areas where an employer needs to drill down for further information to understand what next steps are required and how the employee can be accommodated.
These types of notes are opportunities for the employer to request further and better medical information to better understand the employee's medical needs.
The medical information that you require is specific and targeted.
What you don't need is a review of the employee's medical history or prior treatment.
An employer's primary interest is in the applicable medical restrictions and/or limitations.

8. Accommodation Options
Not preference of employee. What is reasonable and does not create undue hardship
Individual approach
Approach and solutions may require creative thinking

9. Presumptive Entitlement for PTSD

10. Supporting Ontario's First Responders Act
If a First Responder is diagnosed with PTSD by a psychologist or psychiatrist it is presumed that PTSD is work-related

11. Rebuttable Presumption
Section 14(6): the posttraumatic stress disorder is presumed to have arisen out of and in the course of the worker’s employment, unless the contrary is shown.

12. Rebutting the Presumption
Employers will need to lead evidence demonstrating that PTSD was not significant contributing factor
prior traumatic events?
Will need to carefully review medical and psychological file

13. Preventing PTSD in the Workplace
Minister of Labour call for PTSD prevention plan
Not required by legislation
Will be posted publically
Key features of plan
Identify causes and minimize exposure (cognitive demands analysis)
Proactive training
Timely response and counselling
Creating safe and open workplace

14. Supporting Ontario's First Responders Act
First Responders are:
Full-time, part-time and volunteer firefighters.
Fire investigators
Police officers
Members of an emergency response team
Paramedics, emergency medical attendants, and ambulance service managers
Workers in a correctional institution
Workers in a place of secure custody or place of secure temporary detention
Workers involved in dispatch

15. Key Features of the Amendment
PTSD diagnosis from psychologist or psychiatrist
No entitlement if PTSD caused by employers decisions or actions re. employment (change to work, discipline, etc.)
If no entitlement under s. 14, can still seek entitlement under s. 13 (traumatic mental stress).

16. Application of Amendment to Claims
First responder at time of filing the claim and diagnosis is made on or after April 6, 2014.
Ceases to be first responder on or after April 6, 2016, and diagnosis is made on or after April 6, but no later than 24 months after worker ceased to be first responder.
Ceased to be first responder after April 6, 2014 but before April 6, 2016 and diagnosis made on or after April 6, 2014 but no later than April 6, 2018.
Claims where diagnosis is made before April 6, 2016 must be filed within 6 months after April 6,
Pending claims decided under s. 14. Pending appeals at WSIAT will be referred to WSIB to be decided under s. 14.

17. Supporting Ontario's First Responders Act
Bill 163 also amended the Ministry of Labour Act
The Minister may direct employers of first responders to provide information to the Minister relating to the employer’s plans to prevent work-related PTSD.
Employers of first responders are required to provide this information
No obligation to have a plan
No obligation to have a plan to prevent work-related PTSD (compare with violence prevention policies/programs under OHSA).
But query whether this is now best practice – create a plan for reducing the risk of PTSD.
Challenging in EMS environment – employees are susceptible to PTSD from nature of work. Can’t avoid sending paramedics to potentially traumatizing calls.
You are all now facing the new world of presumptive entitlement. Claims costs are going to go up. You are going to see old claims arise again if they are in the appeal system. And you can be sure that this is not the end of legislation around mental health in the workplace. Maybe not specific to first responders, but we may be approaching entitlement for chronic stress claims.
It is no longer a question of if we need to address mental health at work – the questions are how do we address it and how quickly can we address it.

18. Reducing the Risk of PTSD
Know your workplace
Know your resources
Create a policy
Educate your management and employees

19. Accommodating Employees w/ PTSD
Cognitive demands analysis of position
Clearly understand restrictions, if any
Place worker in situation where exposure to trigger events is minimized as much as possible
Understand that there may be setbacks
Be flexible and understand that restrictions may change over time

21. Accommodating Mental Health Issues in the Workplace
Note: This is our widescreen format template (our new Firm standard going forward). If you require regular screen width, click on the Office Button, select ‘New’ and select the Regular Template.
If there is only 1 presenter, delete the red barrier line and ‘Presenter 2’
Paul S. Schwartzman
June 8, 2017