Disability-Related Misconduct and Problems of Underperformance: Dealing with mental illness and addiction

What happens when an employee with a mental illness or an addiction has a performance or attendance issue or engages in workplace misconduct that may be related to the disability? How should workplace parties decide whether discipline or accommodation is called for? In light of the growing acceptance of the need to accommodate individuals with mental illness or addictions, what steps should workplace parties take to deal with disability-related attendance, performance, and misconduct issues? Our panel of experts will address these issues as well as the following questions:

• Duty to Inquire: What duty does the employer have to inquire about an employee’s mental health when an employee is experiencing performance or attendance issues or has engaged in misconduct? What steps should an employer take if management suspects that an employee’s disability has contributed to misconduct? What happens when the employee denies she or he has a mental illness or addiction?
• Right to Information: What type of information is the employer entitled to in order to develop a plan to accommodate employees with mental illness or addictions? Is the employer entitled to a specific diagnosis? Is information from a family physician sufficient or can the employer require that the employee obtain information from a specialist?
• Accommodation: What types of performance issues must an employer accept? Must an employer accept different performance or attendance standards for employees with mental illness and/or addictions? How will an employee’s failure to disclose his or her mental illness or addiction affect the employer’s duty to accommodate? When, if ever, will last-chance agreements be appropriate? What about written “return to work” plans?
• Undue Hardship: How much absenteeism, poor performance, or misconduct is an employer expected to accommodate? That is, when will the employer reach the point of undue hardship in accommodating an employee with mental illness or addiction that results in misconduct or performance issues? Must an employer accept dishonest conduct or statements related to an employee’s attempts to deny or hide his or her illness or addiction? Even if that employee occupies a position of trust usually held to a very high standard (e.g. teachers, health care workers, etc.)?
• Arbitral Approach: Do arbitrators still actively employ a “hybrid approach” in respect of employees who engage in misconduct related to their mental illness or addiction? What evidence will be required to establish a nexus between the misconduct or performance problems and the mental illness? What is likely to be the result at arbitration when the employee’s mental illness does not come to light until after disciplinary action has been taken?