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THE QUESTION

I am an office manager at a small business. I have an administrative assistant who has shared with me and my boss, the owner of the business, that she has anxiety and bipolar disorder, but has refused both medication and counselling. She also expressed that she finds some tasks difficult because of her illness, which I have noticed.

As someone who deals with my own mental health illness, I empathize. Believing that "a healthy employee is a productive employee," my boss wants to cover the cost of counselling and would happily offer it to her. However, he thinks that if she refuses to accept help, it's grounds for termination.

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Is mandatory counselling legal? What are her rights? Can someone be fired because they refuse to seek help?

THE FIRST ANSWER

Daniel Lublin

Partner at employment law firm Whitten & Lublin, Toronto

Requiring an employee with a mental illness or a disability to attend therapy or any other form of treatment as a condition of continued employment is discriminatory and illegal. Similarly, terminating an employee because he or she refused to participate in treatment is also discriminatory. This is the view of most human rights judges across Canada and it is also specifically stated in the Ontario Human Rights Commission's new policy on mental health disability.

There is one exception. Where an employee's refusal to participate in treatment for an illness or disability interferes with his or her ability to perform the essential duties of the job, an employer may be justified in ending the employee's employment. For example, if it is a key component of an employee's job to carry heavy equipment and tools, it may be reasonable to require that employee to wear a brace or attend physical therapy, if he or she has a physical injury. If not, the employee could further injure himself or even others.

However, in an office work environment, it is difficult to show that the employee with a mental illness cannot be accommodated in any other way than through forced counselling. When dealing with mental illness, there are many forms of handling/managing that illness. Counselling is only one of a number of solutions and terminating the employee for failing to attend counselling can lead to a successful human rights complaint.

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THE SECOND ANSWER

Natalie MacDonald and Stuart Rudner

Co-founders of boutique employment law firm Rudner MacDonald LLP, Toronto

This is difficult, given the protection for employees under human rights legislation, prohibiting discrimination and harassment on the basis of specific grounds, one being disability. If the employee with bipolar disorder is terminated for refusing to accept help, she will have a legitimate human rights complaint.

While an employee cannot be forced to seek assistance for illness, if the illness impedes performance, the employer has a bona fide reason for the request, which provides a defence against a human rights complaint. If the offer is made in good faith owing to poor performance, failure to seek assistance resulting in continued negative performance enables the employer to terminate the relationship.

Employers have the right to dismiss an employee at any time throughout employment, but must do so fairly. To do so, the employer must terminate with cause, or without cause.

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Dismissing with cause means the employer is not required to provide anything monetarily, but must have a legitimate reason, and context must be examined. Terminating for just cause for failing to accept assistance for an illness would be harsh, and a breach of that person's human rights. It would also garner a claim for extraordinary damages.

Dismissing without cause requires the employer to provide reasonable notice or a "severance package." Terminating this same employee without cause and providing a fair package is acceptable, as long as the offer of assistance has been in good faith, and failure to accept results in further performance deterioration.

The employer therefore has a legitimate bona fide reason for the request, and can demonstrate that the dismissal was not for refusing assistance, but because failure to do so has continued to negatively affect job performance. Employers are entitled to have employees perform the job for which they have been hired.

Got a burning issue at work? Need help navigating that mine field? Let our Nine To Five experts help solve your dilemma. E-mail your questions to ninetofive@globeandmail.com.

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