If you are someone with high anxiety or any other mental health issue and you haven’t told your employer, what do you do? If you are not in a job that requires legal disclosure of a mental health problem, like an airline pilot or police officer, you may not have to do anything. But if you find yourself needing help at work or time off, keeping quiet may not be the wisest option, legal experts say.
Just over half of all employed Canadians with a mental illness are women, and people who work in sectors including the government, culture, food and accommodation show the highest prevalence of mental illness, according to a recent study by the Conference Board of Canada.
In all, mental illness affects some 4.2 million employed Canadians and costs the economy as much as $50 billion per year, according to the Mental Health Commission of Canada. That last number is often underlined, circled in red and then underlined a few more times by advocates trying to convince employers to do more — to be understanding, meet a troubled employee halfway — on the mental health front.
But the key word is “halfway.” Legal experts note employees must be reasonable — and specific — if they want what’s known as an “accommodation” from their bosses while dealing with a mental health illness or disability.
Reasonable and specific
A person battling depression might need extra sick days, or time off during the day to see a therapist, for example. Someone with anxiety might want their desk moved to a quieter corner of the office. But you have to ask.
“If you’re not seeking accommodation you barely have a right to it,” says James Heeney, an employment lawyer and partner at the Toronto firm Robinson Heeney. “The biggest mistakes we typically see is, number one, an employee not actually going to HR and disclosing they need some accommodation.”
Number two, he says, is not participating in the process once it’s started. Employers will often complain that an employee hasn’t responded to requests for a doctor’s note or other information. “There’s a mutual obligation in the process,” Heeney says.
Not asking for something specific or, worse, not asking for anything until it’s too late are common missteps. Daniel Lublin of Toronto’s Whitten & Lublin says potential clients will sometimes come to him after they’ve already been fired or disciplined because of something to do with a disability.
But if the employer didn’t know about the disability, it will be hard for the employee to make a discrimination case, Lublin says. “If you can’t get past that preliminary issue, you’ve blown it,” he says. Lawyers say it’s better to start the conversation early, during which there are many questions an employer will not be allowed to ask, including what illness the employee has and how he or she is being treated.
But some lawyers agree that, under the right conditions, offering a bit more information than what is strictly required by law can make the process go more smoothly.
There might be no point, for example, in dancing around the words “anxiety disorder” if an employee is complaining about pervasive anxiety. Or, an employer might not know that a staff member has been missing work because of depression caused by, say, the loss of a loved one.
Singer hopes to make depression ‘kind of normal’
Armed Forces applicant cites discrimination over anxiety diagnosis
“It’s a judgment call based on your employer,” says Samantha Lamb of Jewitt McLuckie & Associates in Ottawa.
Some employers will respond well, regardless of how much they’re told, she says. “Unfortunately there are lots of employers out there who have little knowledge about mental health and still buy into the stigma that everyone with a mental illness is a danger to themselves and others.
“So there’s a risk that their first reaction is going to be ‘You can’t be here.'”
Published: May 30, 2015. By Sean Davidson
Copyright ©2015 CBC/Radio-Canada