Winter 2 0 2 0
In this Issue Mental Health in the Workplace Substance Abuse Disorders What is the Duty to Accommodate?
HRLR Insights Newsletter
Welcome
Issue 7
January 2020
Mental Health in the Workplace Understanding mental health issues and finding ways to support your staff as they experience a mental health concern.
HR Insights Welcome to SARC’s Human Resources and Labour Relations Newsletter. Join SARC Consultants each quarter as we explore topics important to managing employees and HR/LR risk.
CONTENTS Understand the different forms of mental health illnesses and what you, the employer, are responsible for when providing a healthy and accommodating workplace for people with mental health illnesses.
Mental Health in the Workplace
3
6
This article focuses on the illness surrounding substance abuse and what you, the employer, must understand in order to facilitate a leave of absense and respectful return to work process.
Substance Abuse Disorders
8
What is the Duty to Accommodate? HRLR NEWSLETTER
2
This article discusses the Duty to Accommodate and provides an easy-to-follow checklist for employers when assessing illness-related leaves of absences.
A B O U T T H E C O N S U LTA N T S About Marrion
Marrion Wolff SARC Labour Relations Consultant
Marrion can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. She can also provide specific
support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.
About Pat Pat, from Kn/A HR Consulting, is available to consult with SARC Regular and Associate Members on a number of HR-related issues. Pat has extensive skills and knowledge in many areas of human resource management, having held a number of senior human resource positions in administration, payroll, advisory,
and finance settings. Her experience is backed by training in harassment investigations and specializations in interviewing techniques, conflict resolution, negotiation, job evaluation, and mediation. She is an active volunteer, and sits on several boards within her community.
Pat Varga Kn/a HR Consulting
About Shane With a background in human resources, Shane provides an understanding of the issues faced by human resources professionals and provides practical solutions to all areas of labour and employment law.
Shane Buchanan M LT A i k i n s
Shane is a graduate of the University of Saskatchewan College of Law. During law school, he was a team captain of the Huskies Football team and vice-president of the Huskies
Athletics Committee. He previously worked as a law student for a worldleading potash company where he focused on labour and employment law and assisted in a merger between two agriculture companies that resulted in the creation of the world’s largest provider of crop inputs and services. He also has experience working for one of the world’s largest uranium producers.
About Amy Amy Gibson carries on a general labour and employment practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S,
workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications. HRLR NEWSLETTER
3
Amy Gibson M LT A i k i n s
Mental Illness
Mental Health in the Workplace
Marrion Wolff
E
SARC Labour Relations Consultant
mployers have a high level of responsibility in both providing a healthy and safe workplace and in providing support and assistance to employees experiencing medical issues. Employers are familiar with back injuries or assisting an employee with a gradual return to work following surgery. We are more comfortable with these physical ailments because we have dealt with them frequently in the workplace and find them easy to discuss. The same is not true of mental illnesses, though the conversations are becoming more common and over time will become easier to handle. The best way to become more comfortable talking about mental health is by learning more about it and encouraging conversations on this topic. The following is an excerpt from the SARC online resources article entitled Mental Health Issues in the Workplace that lists some common mental health conditions and generally some of the symptoms. The entire article can be found in the Manager’s Resource Area under the heading HR/LR: Employment Leave and Attendance Management.
There are many types of mental illnesses. Though not an exhaustive list, the following are some of the more common types of mental illnesses: Anxiety disorders: These are the most common group of mental illnesses, and they are characterized by severe fear or anxiety associated with particular objects and situations. Anxiety becomes a problem when feelings of tension and fear prevent a person from carrying out everyday tasks. In some cases, people may suffer panic attacks or phobias. Signs and symptoms of anxiety disorders include: • • • • •
Sense of fear or impending doom or death Excessive worrying Decrease in concentration Rapid or slow thinking Irritability, easily distracted, difficulty sleeping
•
Mood disorders include but are not limited to: •
Major depression: An extreme or prolonged episode of sadness in which a person loses interest or pleasure in previously enjoyed activities.
•
Bipolar disorder: Also known as Manic Depressive Disorder, with this illness a person may swing between episodes of extreme depressive symptoms to extreme mania (feeling of elation, high energy, grandiose ideas and risky behaviour).
•
Seasonal affective disorder (SAD): A form of major depression that occurs in the fall or winter and may be related to shortened periods of daylight.
•
Post-partum depression: A form of depression that can occur after the birth of a child. This can occur following any pregnancy, including miscarriages and abortions.
Physical symptoms (heart racing, chest pain flushing, shortness of breath, dizziness, headaches, nausea, muscle aches and pains). Mood Disorders: Also known as depressive disorders. These illnesses involve changes in mood, usually involving either depression or mania. With appropriate treatment, many people with mood disorders improve substantially. The treatments of mood disorders vary but often include medications, therapy, or other specialized treatments. The signs and symptoms of mood disorders vary from person to person, but can include, but are not limited to: • • • • • • •
Overwhelming feelings of sadness Decrease in personal appearance Decreased energy and feeling tired Feelings of worthlessness Withdrawal from others or seem “down” Neglecting responsibilities Appetite changes HRLR NEWSLETTER
4
Difficulty in thinking and making decisions
Psychotic Disorders: Psychosis is a term used when a person appears to lose some touch with reality. The most commonly known psychotic disorder is Schizophrenia. The illness is highly complex, and few generalizations hold true for all people diagnosed with schizophrenia. However, most people initially develop symptoms between the ages of fifteen and twenty-nine. Typically, the illness is characterized
M E N TA L H E A LT H I N T H E W O R K P L A C E
Recognizing the symptoms of mental health disorders is an important tool for supervisors to utlize in the workplace. by thoughts that seem fragmented and difficulty processing information. The treatment of Schizophrenia will require medication and therapy. Many people who are diagnosed with Schizophrenia will go through cycles where they stop taking the medications, which then result in symptoms recurring and acute episodes of psychosis occurring. At these times, medication and therapy will be required.
:
Substance-related disorders: People use substances, such as drugs and alcohol, for various reasons. Using a substance does not mean that someone has a substancerelated disorder. However, people can develop a substance-related disorder when negative patterns of behaviour are developed as a result of using the substance. The result is many different areas of the person’s life becoming negatively affected. The behaviours associated with substance-related disorders fall into the following four categories: • •
Impaired control (inability to quit or limit, craving, requiring larger amounts, etc.) Social impairment (failing to meet obligations, interpersonal issues, interfering with social, work and
recreational activities, etc.)
disabilities, they also need to inquire • Risky use (endangering self and investigate if they see evidence or others, physical harm, of an employee possibly needing psychological harm, etc.) accommodation due to mental health issues. Some examples may • Pharmacological criteria (needing increased amount to get the same include employees displaying severe effect and withdrawal) emotional reactions, such as anger, aggression or crying. While these may Eating disorders: These are extreme impair an employee’s performance ways of controlling food intake and weight gain, usually as a way of coping the employer should investigate with emotional difficulties. People with the situation to ensure there is not a mental health issue before they anorexia nervosa severely restrict refer to performance management their calorie intake, while those with or discipline. This can be difficult to bulimia nervosa may binge eat. Both investigate as the employee may be in conditions may lead to people using denial and reluctant to discuss their other techniques to lose weight mental health. SARC online resources including vomiting, use of laxatives have medical certificates for both and excessive exercising. physical and mental health situations, Recognizing the symptoms of mental and having these completed by the health disorders is an important employee’s physician would be one tool for supervisors to utilize in the of the first steps in investigating workplace. When dealing with an the problem. Mental illnesses are employee who is suffering from some treatable, and the cost of not treating form of mental illness, employers must them may be high in personal, work, exercise compassion and sensitivity and financial terms. and work with the employee and union —if applicable—to determine how the illness may affect the employee’s performance and ability to perform their duties. Just as employers Marrion Wolff work with employees needing Labour Relations Consultant accommodations due to physical
HRLR NEWSLETTER
5
The Duty to Accommodate
Substance Abuse Disorders
T
he duty to accommodate requires employers to make every reasonable effort, short of undue hardship, to accommodate an employee in the workplace who falls under a protected ground. One of the protected grounds that employers most often encounter is disability, which includes addiction and substance abuse disorders. This article outlines a number of considerations and recommendations for employers dealing with an employee who has, or who is suspected to have a substance abuse disorder. Suspected Substance Abuse Disorder Typically an employee has the responsibility to inform the employer that he or she requires accommodation because of a disability. However, when the employer is aware, or reasonably ought to be aware, that a disability is affecting an employee’s work performance, the employer has a duty to inquire as to whether the employee is suffering from a disability.
Amy Gibson & Shane Buchanan MLT Aikins
It is important for employers to know that an employee’s denial of a substance abuse disorder may not be conclusive. An employee who suffers from a substance abuse disorder could be in a state of denial that is linked to the disability. To address this, it is recommended that the employer offer the employee frequent opportunities to admit to his or her disability. Employers can also direct the employee to employee assistance programs where available, and consider offering the employee the option to attend a substance abuse professional paid for by the employer. It is recommended that the employer document all inquiries into the employee’s potential disability. If the employee does not admit to having a disability, there is little the employer can do. However, if the employer’s inquiry was triggered by poor performance or attendance, or a specific incident, the employer should
An employer might have reasonable cause to suspect an employee suffers from a substance abuse disorder if the employer observes changes in an employee’s attendance, performance, or behaviour. If an employer suspects that an employee has a disability, it is recommended that the employer address its concerns directly with the employee. In unionized workplaces, employers should consider having a union representative present.
HRLR NEWSLETTER
6
then consider the misconduct as a disciplinary offence. The employer should follow progressive discipline as outlined in the employer’s policies or collective bargaining agreement. Confirmed Substance Abuse Disorder Once an addiction or substance abuse disorder has been confirmed by the employee or an appropriate medical professional, the employer must accommodate the employee to the point of undue hardship. The duty to accommodate is the responsibility of the employer, but the union (if applicable) and employee are also required to assist in the accommodation. Before the accommodation process can begin, the employer must ensure it has adequate medical information. The employer at a minimum is entitled to know whether the employee is unable to perform their usual work duties and what accommodations are required for their disability.
When an employer first learns about an employee’s disability, there also needs to be a consideration as to whether it is safe for the employee to continue to perform his or her duties. Employers have a general duty under occupational health and safety legislation to maintain a safe workplace and an employee who is struggling with a substance abuse disorder could pose a serious safety risk to the workplace. The employer may need to move the employee to a different position or have the employee leave work on a paid administrative leave until an accommodation can be made. It is important to note that moving the employee or putting him or her on administrative leave is not considered disciplinary. It is a precautionary safety step until the appropriate accommodation can be made. Once an employer has the appropriate medical information, it can determine how to accommodate the employee, if possible. An employer must accommodate an employee’s disability unless the accommodation would cause the employer undue hardship or the disability prevents the employee from being able to perform a bona-fide occupational requirement. A bonafide occupational requirement is a job requirement that is necessary for the proper or efficient performance of the job. Without this skill or ability, the job cannot be performed in any manner. Undue hardship is a very high bar for employers to meet and highly dependent upon the circumstances of each situation. That being said, it often occurs when an accommodation would create onerous conditions on the employer, such as:
medical documentation confirming that the employee is attending treatment and when the employee is expected to return to work. Employers should also be prepared for relapses. A complicating factor with substance abuse disorders is that even if the affected employee seeks treatment and returns to active and productive employment, relapses are common and considered a part of the disability. As such, the duty to accommodate may be ongoing. Typically, the accommodation process in the context of substance abuse will inherently contemplate the likelihood of one or more relapses. Accordingly, the employer may be required to accommodate multiple relapses and associated periods of absence for treatment before reaching the point of undue hardship. When the Employee is Able to Return to Work It is recommended that when the employee returns to work after treatment, the employer, employee, and union (if applicable) enter an agreement that clarifies the employee’s obligations with respect to the employee’s return to work. Employers should consider providing the employee with written performance guidelines and expectations, along with the consequences should these guidelines and expectations not be met. It is also recommended that the employer schedule regular follow-ups with the employee.
Another tool available to employers is a Last Chance Agreement. A Last Chance Agreement is an agreement that allows the employee, employer, • Intolerable financial costs; and union (if applicable) to negotiate • Serious disruption to its operation; the terms of re-employment following a or relapse. The purpose of a Last Chance • Serious risk to health and safety. Agreement is to allow the employer to clarify the obligations with respect to A common accommodation for the employee’s return to employment employees with a substance abuse disorder is to provide the employee time following a rehabilitation program. A violation of a Last Chance Agreement away from work to attend treatment, is typically grounds for termination of such as a rehabilitation program. It the employment but will be dependent is important for employers to obtain HRLR NEWSLETTER
7
When the employee returns to work after treatment, the employer, employee, and union (if applicable) enter an agreement that clarifies the employee’s obligations with respect to the employee’s return to work.
upon the circumstances and specific terms of the agreement. The accommodation of substance abuse disorders and other disabilities is an inherently difficult area for employers to navigate. This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. Readers should consult a legal professional for specific advice in any particular situation.
AMY GIBSON MLT AIKINS
STEVE BUCHANAN MLT AIKINS
Duty to Accommodate Checklist
What is the Duty to Accommodate?
Determine if the requirement for accommodation should be investigated: Employee requested accommodation. Noticeable change in the employee’s: Behaviour/interpersonal relationships. Performance. Attendance/absenteeism/lates. Co-workers have identified/complained.
Pat Varga Kn/a HR Consulting
T
he duty to accommodate means that sometimes it is necessary to treat a person differently in order to prevent or reduce discrimination in the workplace. Under the duty to accommodate, employers are obligated to adjust policies and practices to allow all employees to participate fully in the workplace. The duty to accommodate applies only to needs that are based on one of the 11 protected grounds of discrimination in the Canadian Human Rights Act. The principle of accommodation is comprised of three factors: Dignity – Persons must be accommodated in a manner that most respects their dignity, including their privacy, confidentiality, comfort, and autonomy.
Due diligence required.
Individualization – Each individual’s needs are unique and must be considered individually when an accommodation request is made. A solution may meet one individual’s requirements but not another’s. Inclusion – Achieving integration and full participation requires barrierfree and inclusive designs and removal of existing barriers. Preventing and removing barriers means all persons should be able to access their environment and face the same duties and requirements with dignity and without impediment. In keeping with these principles, employers are obligated to provide accommodations to the point of undue hardship.
HRLR NEWSLETTER
Should Accommodation be Facilitated? Does the disability affect the employee’s ability to do their job? These must be related. Does the limitation fall under one of the categories in the Human Rights Code? Process to Request Medical Information Verbal request (then documented). Written request indicating requirement for information: Provide covering letter indicating situation and job duties. Indicate specific information required. Request employee’s consent. Time limit to provide information. Written request to employee indicating requirement for more information. Written request to employee indicating requirement for a second opinion. Written request to employee indicating requirement for further information to continue sick leave benefits. Appropriate information the employer can request employee provide from their healthcare practitioner (with employee authorization): Requested information must be directly related to the employee’s ability to do a job: Verification of a disability or illness. Prognosis for recovery. When and/or how often the employee will be re-evaluated. Physical/mental restrictions/limitations. Employee’s fitness to return to work. Likely length of time for restrictions or limitations. Written information on how to deal with condition should it occur at work. Fitness to perform parts of his/her job. Likely cause of the condition if related to the workplace. Signs that might indicate a reoccurrence of condition. If contagious required precautions. Assurance that the employee’s return to work will not pose a safety risk. Verification that the employee is attending treatment.
8
r
ies.
e
d.
d it
se
Duty to Accommodate - FAQ’s for Employers Please note that these responses are general in nature. Employers may wish to seek legal advice given the particulars of their situation.
1. What information should be recorded? Ensure all suggestions provided, meetings and discussions held, and options considered regarding the accommodation are documented, as well as keep a record of the accommodation request, action taken, or why accommodation was impossible. This is critical should a complaint later be filed. 2. What if sufficient information is not provided to facilitate an accommodation? Request further information, in writing, about restrictions or limitations that require accommodation, if sufficient information is not provided. If an employee does not provide medical documentation after a reasonable number of requests and time limits, do not discipline; instead, place the employee on a leave without pay until you receive the information you require. If an employee does not provide information for categories/protected grounds, other than ones requiring medical information, after a reasonable number of requests and time limits, inform the employee that you will not facilitate the accommodation until you receive the information you require. 3. What if I don’t have any jobs available for the employee to do? Do not create a job that is unproductive or unrequired or lower the standards of a job to provide an accommodation opportunity. The employer has a right to receive productive work for a salary. This does not mean that specific duties within a job cannot be focused or shuffled to maintain the employee’s classification and pay. 4. What if the only jobs that support the accommodation are lower pay? Attempt to keep the employee in a position that they are able to maintain their salary level. However, if the accommodation results in the employee going to a position with a lower salary, the employer is only required to pay the salary that corresponds to the work. 5. What if the employee has other performance issues not related to their disability? Accommodation does not excuse poor performance or disallow discipline for behaviour that is not HRLR NEWSLETTER
connected to the disability. For example, there may be accommodation of the workload or the workday; however, the accommodated employee must still come to work on time. If the poor performance is linked to an accommodation, then the accommodation should be reviewed to ensure that it is appropriate. For example, if the employee has an accommodation of reduced work hours but errors in work occur late in the shift, then the accommodation of the reduced hours needs to be assessed to see if it is appropriate. If the accommodation is appropriate, then performance assessment would occur as per any performance assessment. 6. Who pays for the cost of obtaining medical information? The employer assumes the cost of any required medical information or documentation. 7. Should we request the opinion of an independent medical practitioner? Only require the employee to go to an independent medical practitioner if the employee and/or their medical practitioner do not provide the required information after a couple of requests, one of which should be in writing indicating this course of action if they do not provide the required information. This is the last resort. 8. What if we have not heard from the employee and they have not come to work (during the accommodation process)? Do not terminate an employee for innocent absenteeism /frustration of contract without receiving up to date information. 9. How much information do we share with other employees? Explain the situation to other members of the affected work unit ensuring that the confidentiality requirements are met. Employees need not know what the specific disability is but if they understand that the “preferential” treatment is meeting a legal requirement and that they as co-workers bear some responsibility in that legal requirement as well, it lessens workplace controversy.
9
Canadian Red Cross Standard First Aid/CPR/AED Level C Through a special partnership with the Canadian Red Cross, SARC Members can access Standard First Aid/CPR/AED Level C training at a special SARC Member rate. For Regular and Associate SARC Members as well as Affiliate Members with CLSD funding, this training is available at NO COST to your organization. For more information, visit https://www.sarclearningcentral.ca/programs/first-aid--cpr
Member Moments SARC wants to share in your fun! Whether your organization is celebrating a milestone, you want to promote an upcoming event, or you simply had an exciting Monday that you want to share, use the hashtags #MemberMoments or #SARCMembers so that we can also share with our audience.
HRLR NEWSLETTER
10