THE QUESTION
My work mandated a return to the office this month. It was a toxic environment before the pandemic and remains the same now. My mental health suffered before and included many trips to the doctor to deal with my anxiety. The past two years working from home were a blessing, but what are my options now that I have to return? My work environment causes me so much stress and anxiety that I cannot perform the essential tasks of my employment. Could I make a disability claim for my employer to accommodate me working remotely?
THE FIRST ANSWER
Nainesh Kotak, founder, Kotak Personal Injury and Disability Law, Mississauga
Many Canadians suffer from anxiety and depression. According to the Canadian Mental Health Association, anxiety disorders affect 4.6 per cent of the population. Toxic work environments are often the cause or major contributing factor to the anxiety-related symptoms.
For some Canadians, working from home during the pandemic provided relief. However, this was not a cure. Rather, symptoms may have decreased as there was less opportunity for conflict. Many employers are now asking employees to physically return to the workplace either fully or with a hybrid arrangement. If you cannot perform the essential tasks of your employment if forced back to the workplace, here is the scoop.
Employers have the right to ask employees to return. However, there are human-rights obligations to accommodate employees with medical disabilities unless it causes undue hardship. This would be looked at on a case-by-case basis.
If you are covered under a short-term or long-term disability policy, you will have a valid claim if you can establish that you are unable to perform the essential tasks of your employment because of a sickness or illness such as anxiety. Three forms are required to be submitted to the disability insurer. These are an employee statement, an employer statement and a physician statement.
It is important to regularly visit your doctor and report your continuing symptoms so they can properly diagnose your condition and provide an opinion that you are disabled from working at your regular occupation.
Disability claims for anxiety and depression are often denied by insurance companies on the basis that there is insufficient evidence. Therefore, it is important to try to keep a journal of the symptoms and regularly consult with treating physicians and therapists.
THE SECOND ANSWER
Trevor A. Kelly, barrister and solicitor, Taylor Janis LLP, Edmonton
Human-rights legislation imposes a duty on employers to accommodate both physical and mental disabilities of employees. The duty is not without limits but is instead up to the point of undue hardship for an employer to accommodate. In the case of mental-health issues such as anxiety or depression, this most often results in employees taking a leave of absence to recover until they’re medically cleared to return to their place of work. A disability requiring accommodation must be supported by medical evidence confirming the existence of the disability and identifying that it needs to be somehow accommodated.
In the case of a chronically toxic work environment causing anxiety or depression for an employee, it is possible that one way for the employer to accommodate such a disability would be to allow that employee to work from home. In the case of a business that had its employees working from home during the pandemic, such an arrangement should be viable and not beyond the point of undue hardship for the employer to accommodate. However, the manner in which an employer chooses to accommodate a disability is up to the employer’s discretion provided it is an objectively reasonable arrangement, and an employee does not generally have the right to refuse it based on personal preference. While working remotely might be one option to accommodate a mental disability, the employer is not necessarily obliged to give that specific option unless no other reasonable options are available.
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Andrea Yu