July 7, 2022

Mental health disabilities can affect workers’ judgment, ability to cooperate, and perceptions of others, all of which will likely interfere in the accommodation process. In this session, a mental health expert together with experienced labour lawyers will provide practical guidance for dealing with situations in which the employee in need of accommodation seems to be either unwilling or unable to participate in the accommodation process. Specific issues to be addressed include the following:

  • When faced with a “difficult employee,” should employers adopt a supportive or rehabilitative approach? Must employers always inquire as to whether disruptive workplace behaviours are related to a mental health disability before applying progressive discipline?
  • Can difficult people change if given a chance? Does the answer depend on whether the difficult behaviour is the result of a common mental health disability, a personality disorder, or simply a “bad attitude”?
  • Why might employees react defensively to suggestions that they may require accommodation due to a mental health disability? What, if anything, can be done to minimize the possibility of such a reaction? What course should be followed if an employee does not acknowledge a disability?
  • Do employers or unions dealing with workers in fragile emotional states have a duty to act with greater sensitivity than would normally be necessary?
  • Are employees with certain mental health disabilities more likely than others to behave in ways that disrupt the accommodation process? In what ways have adjudicators recognized that a mental illness may interfere with an employee’s ability to fully meet their obligations in the accommodation process?
  • What, if anything, can employers and unions do to overcome an employee’s reluctance or refusal to cooperate in the accommodation process? What steps must employers take in order to fulfill the duty to accommodate? What steps must unions take to meet their duty of fair representation?
  • What should be done if it appears that, as a result of a mental health disability, an employee is unable to make rational decisions in their own interest? Is there a role in the accommodation process for the employee’s family members or for some other (non-union) representative or support person?
  • At what point will an employee’s lack of cooperation or other “difficult behaviour” during the accommodation process bring the employer’s duty to accommodate to an end?