Atlantic Employers’ Counsel – Winter 2016

THE EDITORS’ CORNER

Michelle Black and Sean Kelly

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.

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MENTAL HEALTH AND THE DUTY TO ACCOMMODATE

Stephen Penney and Sean Kelly

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.

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THE DUTY TO INQUIRE: THE PROBLEM WITH TURNING A BLIND EYE

Murray Murphy, QC, CHRP

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.

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THE SCOPE OF ACCOMMODATION OF MENTAL HEALTH ISSUES – WHAT ABOUT STRESS?

Josie Marks

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?

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DISCIPLINE AND MENTAL HEALTH IN THE WORKPLACE

Vanessa Paton

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.

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