November 2021In recent years, there has been an effort to increase the understanding and visibility of mental illness and the disabilities it can cause. However, because of the personal nature of the illness, employers can find it difficult to recognize that an employee is ill and then recognize the duty to accommodate the mental illness in the workplace. As a result of the COVID-19 pandemic, there is a significant and well-documented increase in mental health issues affecting employees arising out of job insecurity, safety, family health, and child care concerns, and the disruption to personal and work lives. Mental health issues have further increased during the gradual return to work since many employees are concerned about COVID-19 at their workplace, particularly for high-risk work environments and occupations. The Human Rights Code of British Columbia prohibits discrimination based on personal characteristics of an employee or prospective employee. These protected characteristics include, age, ancestry and colour, criminal conviction, family status and marital status, gender identity and expression, sex and sexual orientation, religion and mental disability. But what exactly constitutes a mental disability? A mental disability includes mental conditions that affect or are seen to affect a person’s abilities; these include a developmental disability, learning disorder, mental illness such as depression, post-traumatic stress disorder or bipolar disorder, alcohol and substance abuse, and some anxiety and stress disorders. Moreover, a mental issue may constitute a mental disability in human rights law if the following conditions are met:
- The mental condition prevents the employee from performing significant functions that can be performed by others;
- The mental condition is ongoing; and
- The mental condition is beyond the employee’s control.
- The financial cost relative to the employer’s size;
- Disruption of a collective agreement;
- Problems of morale of other employees;
- The interchangeability of the workforce;
- The adaptation of facilities; and,
- The magnitude of any safety risks and the identity of those who bear them.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing