September 27, 2018

Arbitrators and other adjudicators have consistently held that an employer has a “duty to inquire” into an employee’s health and possible need for accommodation if an employee displays unusual behaviour that may be indicative of a mental health issue. In some cases, a union may also need to inquire into a member’s health in order to meet its duty of fair representation. In this session, experienced lawyers and a mental health expert will describe the behaviours that may trigger a duty to inquire and provide practical tips on how employers and unions can broach the subject of mental health with workers. Specific issues to be addressed include:

  • How prevalent are mental health conditions in the workplace? What are the signs and symptoms of mental illness that are most likely to manifest themselves in the workplace?
  • In what situations have adjudicators found that an employer had a duty to inquire into an employee’s mental health? What factors/signs should employers look for in deciding whether to inquire about mental health issues?
  • What is the extent of the employer’s duty to inquire into an employee’s health if it suspects that a disability may be impacting his/her attendance? At what stage in the process should such an inquiry be made, and by whom?
  • When will a union need to inquire into an employee’s mental health in order to meet its duty of fair representation and/or its obligations under human rights legislation?
  • When questioning an employee regarding his or her mental health, what constitutes appropriate questioning and how is such questioning to be distinguished from overly intrusive or discriminatory inquiries? What are some practical tips and best practices for raising the potential need for accommodation with an employee? How should employers and unions deal with the issue of denial in the face of evidence that a disability in fact exists?
  • How does the Supreme Court of Canada’s decision in Stewart v. Elk Valley Coal alter the duty to inquire? Are employees who engage in misconduct related to a disability now prevented from raising discrimination and accommodation arguments at arbitration if they did not notify the employer before the misconduct occurred?
  • How do mental health disabilities, particularly substance use disorders, affect an employee’s choice or control over conduct in the workplace?