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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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Non-disclosure agreements: A sword or a shield?

Murray L. Murphy, K.C., CPHR, Katharine Mack and Kate Profit Non-Disclosure Agreements (“NDAs”), legal contracts in which the parties agree to keep information outlined in the agreement strictly confidential, have been the subject…

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What are deceptive design patterns (DDPs)?

Charlotte Henderson and Kaitlyn Clarke Interested in understanding the impacts of AI on your business? Looking to understand how these intersect with concerns around privacy? Curious about the impacts of…

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Effectively identifying and navigating subtle discrimination: A must-do list for employers

By Lynn Iding, CPHR, CCIP and Sheila Mecking Interested in understanding the impacts of subtle discrimination on your business? Curious about the latest legal developments in racial discrimination? Looking to…

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Summary of Bill 14 – Act to Amend the Fair Registration Practices in Regulated Professions Act

By Sheila Mecking and Danielle Bailey-Heelan On March 25, 2025, Bill 14 was introduced by the Acting Minister of Post-Secondary Education, Training and Labour to amend the Fair Registration Practices…

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Enforceable equal wages: More changes for federal employers

BY Tiegan A. Scott & Sophie Poulos

By Tiegan A. Scott and Sophie Poulos The Canada Labour Code (the “Code”) may soon require federally regulated employers to review the wage rates of certain employees under Equal Treatment…

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At a glance: Key changes coming to Prince Edward Island’s Employment Standards Act

Murray L. Murphy, K.C., CPHR and Jacob E. Zelman Prince Edward Island’s new Employment Standards Act (“ESA”) received Royal Assent on November 29, 2024, with an effective date to be to…

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Making AI work for your business

Sarah Dever Letson and Lauren Agnew Interested in understanding the impacts of AI on your business? Looking to understand how these intersect with concerns around privacy and cybersecurity? Curious about…

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Navigating the “Towns Act”: Key changes and transition considerations for towns in Newfoundland and Labrador

BY Stephen Penney & Danielle Harris

By Stephen Penney and Danielle Harris Introduction On January 1, 2025, the Towns and Local Service Districts Act (the “Towns Act”) came into effect, changing the legislative landscape for towns…

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Dealing with Canadian “retaliatory” tariffs: A primer for importers

BY Michelle Chai & Graeme Hiebert

By Michelle Chai & Graeme Hiebert In response to the 25% tariffs levied on virtually all Canadian goods by the United States, Canada has announced United States Surtax Order (2025-1)…

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Balancing inclusivity and workplace safety

BY Sheila Mecking & Lauren Sorel

By Sheila Mecking and Lauren Sorel Introduction Arbitrator Trisha Perry addressed the complex interests between inclusive education and workplace safety in a recent decision (New Brunswick Teachers’ Federation v New…

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