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Frustrated by a labyrinth of privacy laws and human rights barriers, employers have become reluctant or sometimes unable to ascertain the mental health of their employees, including those that they suspect of being unstable. But after the news that a Germanwings co-pilot thought to have deliberately crashed the plane he was flying into a mountainside had been treated for a severe mental illness, and that the airline may now have significant liability toward the families of the passengers, many Canadian employers are beginning to reconsider the boundaries.

But what about employers who are not even aware of an employee's disability or illness to begin with? Not all mental health conditions are easily detected or treated, and many employees may not even recognize their own conditions. Worse, given the stigma associated with mental illness, some employees may be reluctant to seek treatment or even take steps to conceal their difficulties. However, this may not absolve employers from legal exposure in the event of an incident of negligence, violence or worse.

How, then, are employers supposed to address these issues in the workplace and what steps can they take to ensure the safety of co-workers, customers and the employees themselves?

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Duty to accommodate

With the exception of certain safety-sensitive industries (airlines being one of them), Canadian employers cannot discipline, dismiss or otherwise discriminate against employees with illnesses or disabilities, whether overt or perceived, and they must attempt to accommodate them instead. Workplace accommodation refers to the legal obligation to discuss and attempt to find an acceptable and practical solution for an employee with medical restrictions in order to permit him or her to continue to perform the essential conditions of the job.

But the duty to accommodate is not unlimited. Employers must only accommodate to the point of undue hardship, meaning they are excused from this duty if they can demonstrate that reasonable accommodation for a particular employee would be nearly impossible. Similarly, if a particular rule or policy that is imposed for the safe and reliable performance of the job, such as requiring pilots to maintain good vision, can constitute a bona fide occupational requirement, then employers need not accommodate those who cannot meet that condition.

Duty to disclose

The Supreme Court of Canada has confirmed that employees share in the obligation to accommodate their own mental health conditions in the workplace. This means that employees are equally responsible to make employers aware of any conditions that affect their judgment or ability to properly perform their job.

In a recent case, the Ontario Human Rights Tribunal took this one step further, stating that employees are required to "advise the employer of the disability" and "make her or his needs known to the best of his or her ability, preferably in writing."

Duty to inquire

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Employers cannot turn a blind eye in situations where there is a basis to believe an employee is suffering from a mental condition that may be affecting his or her health. Although not the same as a law, the Ontario Human Rights Commission released a policy last year stating that employers should intervene in situations when an employee is clearly unwell or perceived as having a mental health concern.

Further, in Mackenzie v. Jace Holdings, the British Columbia Human Rights Tribunal found that an employer who should have reasonably understood that an employee's depression was affecting her work performance should not have terminated her, despite not actually knowing for certain that she was suffering from a disability. By not asking questions that would have elicited information demonstrating that the employee's condition should have been accommodated, the employer violated the duty to inquire.

Duty to prevent harm

Occupational health and safety legislation across Canada imposes positive obligations on employers to provide safe working environments for their employees. This generally means that employers have to take every reasonable precaution in the circumstances to protect their employees. In certain circumstances, this duty may allow employers to remove employees who are suspected of suffering from a mental illness that could cause harm to themselves or others or even to prevent employees from entering the workplace without specific medical clearance if they are believed to pose a danger.

Practical advice

With these broad concepts in mind, what practical steps can employers take to deal with the safety implications of an employee suspected of concealing a mental illness?

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Provide informal options – Employers can make confidential reporting processes available to employees who want to discreetly disclose medical information and they can ensure that employees have access to and are aware of how to apply for company-sponsored health benefits, disability insurance and especially employee assistance and wellness programs.

Assess risk – Employers should continuously assess possible risk and take note of unusual behaviour. If an employee is acting out of the ordinary, employers have an obligation to make reasonable inquiries in an attempt to provide accommodation.

Be prepared to take action – Management and leaders should be trained on an action plan to swiftly deal with any negative implications from the suspected concealment of mental health issues in the workplace, especially in safety-sensitive positions. The plan should address the possible isolation or removal of an employee from the workplace in situations where there is a real risk posed to the employee or others.

Daniel A. Lublin is a partner at Whitten & Lublin, Employment Lawyers, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com

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