Law Times

Page 8 SePtember 8, 2014 • Law Times www.lawtimesnews.com OHRC policy tackles mental health, addictions Commission offers guidance on area plagued by stigma, lack of awareness By marg. Bruineman For Law Times new policy from the Ontario Human Rights Commission recognizes the need to highlight the oen-overlooked responsibilities of employers and service providers when it comes to mental-health disabili- ties and addictions. e commissions' policy on preventing discrimination based on mental-health disabilities and addictions lays out what it expects in situations where there are complaints of discrimina- tion. It also offers a framework for employers, acknowledging there's still a lack of understand- ing of how to deal with mental- health issues in the workplace when it comes to their obliga- tions under the Ontario Human Rights Code. "Clearly, mental-health issues have really come to the forefront in Canada, in the last year or two in particular," says Catherine Coulter, an employment and litigation lawyer with Dentons Canada LLP in Ottawa. "It's re- ally burst onto the scene. So it is not surprising that the commis- sion took it upon themselves to elaborate further." e policy acknowledges the pervasiveness of mental illness and addictions as well as the long-standing discrim- ination, stigmatization, social exclusion, and fear many people experience, especially when it comes to disclosing their condition. It also em- phasises the protection pro- vided through the Ontario Human Rights Code with references to the Charter of Rights and Freedoms, the Accessibility for Ontarians with Disabilities Act, and the United Nations Convention on the Rights of Persons with Disabilities. It provides guidelines on legal rights and responsibili- ties, including how the duty to accommodate applies to peo- ple with disabilities related to mental health and addictions; what the duties and responsibili- ties in the accommodation pro- cess are; the considerations in assessing the test for undue hard- ship; possible limits to the duty to accommodate; balancing those considerations with the rights of others; organizations' responsi- bilities to prevent and eliminate discrimination; and how they can create environments that are more inclusive and free from discrimination. "e ultimate responsibility for maintaining an environment free from discrimination and harassment rests with employ- ers, housing providers, service providers, and other responsible parties covered by the code. It is not acceptable to choose to stay unaware of discrimination or harassment of a person with a mental health disability or ad- diction, whether or not a human rights claim has been made," the policy states. e code protects people with mental-health disabilities and addictions from discrimination and harassment in a number of areas. ey include interac- tions when receiving goods and services, the use of facilities in both the public and private sec- tor, housing, contractual agree- ments, unions, associations, and employment. Joseph Blinick, an associate at Bennett Jones LLP in Toronto, says the policy makes it clear the employer's responsibility ex- tends into the entire workplace to ensure it's free of discrimina- tion, "which is an interesting point for an employer to keep in mind." "I'm sure it will be working its way into the jurisprudence over the coming months," he says. A point he says is particular- ly noteworthy is the employer's duty to accommodate the needs of people with mental-health and addictions issues. e com- mission's position through the new policy is that the employer, along with other services, must inquire if there's a concern re- lating to mental health when a problem, such as poor job per- formance, occurs. at duty doesn't arise if the employee doesn't acknowledge a problem, but it's important for employers to be aware of their responsibil- ity in that area. at section addresses the underlying difficulty with mental-health issues: the fact that it's invisible and not ob- vious, says Barbara Hall, chief commissioner of the Ontario Human Rights Commission. "Oen, an aspect of men- tal illness is denial of its ex- istence," she says. "ere is some responsibility there on the employer in that situa- tion" to try to get the employ- ee help and not proceed with disciplinary action immedi- ately. e difficulty, she notes, is that accommodation gen- erally requires an individual- ized approach. Hall identified mental health as an area requiring attention when she first came to the commission nine years ago. She found it surprising that although disability was the largest single area that resulted in complaints, they were basically all physical disabilities. Based on the knowledge that those with mental-health dif- ficulties are oen the victims of stereotypes, the commission launched a provincewide survey that resulted in the largest re- sponse it had ever received, says Hall. It culminated in a report that recommended the continuation of the development of a policy outlining the rights of people with mental-health issues and addictions and laying out the responsibility of employers, all of which led to the latest policy paper. e policy tries to give em- ployers and others the tools they may need to deal with related situations as society begins to acknowledge the prevalence of the issue. "We've got to try," says Hall, who's hopeful society will be able to move beyond the stigma and the stereotypes. Coulter, who recently co- chaired the 13th annual Infonex conference on managing the duty to accommodate in the workplace, cites recent statis- tics indicating that in any given week, 500,000 Canadians are unable to work due to mental- health issues. e estimated cost in the workplace is $51 billion. Mental-health issues have also become one of the major issues she sees in employment law. e policy gives lawyers and employers some direction on what the law expects of them. e next step, says Coulter, is to bring awareness to the policy. "Anybody who reads it is go- ing to have a pretty good sense of the lay of the land," she says. LT 'Clearly, mental-health issues have really come to the forefront in Canada, in the last year or two in particular,' says Catherine Coulter. Focus on Human Rights Law Girones_LT_June16_14.indd 1 14-06-06 10:53 AM A

• Cover