Atlantic Employers’ Counsel – Winter 2016
THE EDITORS’ CORNER
One day, the line between mental and physical disabilities may not be so pronounced, but, for now, distinctions are still drawn between Employee A with, for example, diabetes and Employee B with, for example, depression. Both employees are dealing with serious health conditions but Employee B’s condition can present additional challenges because it can be difficult to “see” and difficult to understand.
MENTAL HEALTH AND THE DUTY TO ACCOMMODATE
Employers can face many challenges when dealing with employees who are struggling with a mental health issue. Illness and disability affecting employees can cause staffing/absenteeism challenges and morale problems with other employees. Barriers to managing the return to work process and re-integration into a productive workforce often arise.
THE DUTY TO INQUIRE: THE PROBLEM WITH TURNING A BLIND EYE
You have heard this scenario before: An employee is constantly showing up late (or not showing up at all), being insubordinate or argumentative, or worse – completely unmanageable, so the employer then dismisses the employee. The employee then files a grievance or a human rights complaint stating that he or she suffers from a disability and the dismissal was discriminatory.
THE SCOPE OF ACCOMMODATION OF MENTAL HEALTH ISSUES – WHAT ABOUT STRESS?
There is growing understanding of the need to accommodate mental health issues in the workplace, not only due to human rights obligations but also to optimize employee productivity. However, the boundaries of employers’ obligations from a human rights perspective are not always clear. This article focuses on stress-related accommodation requests: is an employer obliged to accommodate an employee having difficulty coping with stress?
DISCIPLINE AND MENTAL HEALTH IN THE WORKPLACE
Disciplining employees who are suffering from mental illness can pose particular difficulty for employers. Although there is a duty to accommodate mental illness in the workplace in the same way as any other disability, misconduct related to a mental health issue is not immune from discipline. Employers are well advised to be aware of the relevant considerations, risks and obligations with respect to managing a disabled employee’s performance.
Archive
Chad Sullivan and Kathleen Nash Overview The issue of hateful and harassing social media communication has garnered much attention in both the media and, more recently, in the courtroom. In Caplan v Atas,¹ Justice Corbett…
Read MoreDaniel MacKenzie and James Galsworthy On January 15, 2021, the United Kingdom’s Supreme Court (“Court”) issued a decision which is likely to be viewed as good news for policy holders who have endured business interruption…
Read MoreGrant Machum, ICD.D and Mark Tector 2020 was a challenging year for many people and businesses. And while we are all happy to have 2020 in the rearview mirror, we anticipate that there will continue to…
Read MoreKevin Landry and William Wojcik On December 11, 2020, the federal government announced Canada’s strengthened climate plan in a document titled A Healthy Environment and a Healthy Economy (“Plan”). The Plan proposes to increase the carbon…
Read MoreKenneth McCullogh, QC and Conor O’Neil, P.Eng. On December 18, 2020, the Legislative Assembly of New Brunswick passed the Construction Remedies Act. The new legislation will not take effect until a date to be named…
Read MoreMark Tector In a recent decision, an adjudicator upheld the dismissal of an employee/complainant who made inappropriate and offensive remarks on a call with a customer (Crawford v Canadian Imperial Bank of Commerce). The complainant…
Read More2020 brought us all challenges that have been unprecedented in our time. The COVID-19 global pandemic has impacted us in ways that were unimaginable. As Atlantic Canada navigated the challenges of changing worlds, and workplaces,…
Read MoreKathleen Leighton On December 31, 2020, the Honourable Marc Garneau, Minister of Transport, announced new pre-boarding COVID-19 testing requirements that would be coming into effect in short order. In particular, as of January 6, 2021…
Read MoreDaniela Bassan, QC, has published an article in volume 36 of the Canadian Intellectual Property Review. She comments on an Italian case granting copyright protection for a retail store in the cosmetics industry, and considers…
Read MoreRob Aske In late December 2020, the Supreme Court of Canada (“SCC”) issued a key decision elaborating on the duty of honesty in relation to termination of a commercial contract. This duty was primarily established…
Read More