Employer’s obligation to a suicidal employee

Employees with depression may not directly ask for help

Question: What is the employer's obligation when an employee is depressed and threatens suicide? Is there a difference whether the employee says this to someone at work or the employer becomes aware of it "through the grapevine?"

Answer: When an employer becomes aware of a depressed or suicidal employee, two areas of the law can come into play: The duty to accommodate and due diligence as required by occupational health and safety legislation.

The duty to accommodate requires employers to make every reasonable effort, short of undue hardship, to accommodate an employee who comes under a protected ground of discrimination. In most cases, the protected ground is a disability.

While there has been no single definition of “undue hardship” in law, the courts have made it clear the effort required to accommodate employees must be significant. Employers must show their attempts to accommodate were serious, genuine and demonstrated best efforts. The Supreme Court of Canada endorsed this threshold in 1999 in British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (Meiorin), stating employers must establish it is “impossible to accommodate individual employees without imposing undue hardship.” More recently, it revisited the concept of accommodating to the point of undue hardship in the case of Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil.

“Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided,” the court said. “If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties — or even authorize staff transfers — to ensure that the employee can do his or her work, it must do so to accommodate the employee.”

Some see Hydro-Québec as moderating earlier pronouncements on what is needed to demonstrate undue hardship, though the extent is perhaps yet to be determined. It remains the law, however, that once the need for accommodation has been established by an employee, the burden shifts to the employer to show reasonable efforts were undertaken to accommodate the disability. It is also clear, however, from Hydro-Québec, that “where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future,” the employer is no longer legally required to accommodate the employee.

Is depression a disability?

The leading definition of “disability” and “handicap” within the context of human rights legislation comes from Entrop v. Imperial Oil Ltd., where a board of inquiry considered the terms to be the same, defining them as “an illness, injury or disfigurement that creates a physical or mental impairment and thereby interferes with a person’s physical, psychological and/or social functioning.”

In Berg v. University of British Columbia, the Supreme Court of Canada recognized depression is a disability that falls under the protection of human rights legislation. Clinically diagnosed stress that impairs an employee’s ability to function in the workplace will, in all likelihood, qualify as a disability and require accommodation, which may range from modifying the workplace to a total withdrawal from the workplace. The current frequency with which these issues are emerging in workplaces is increasing and, as a result, so is the Supreme Court of Canada’s new broad approach to defining a handicap, making it more likely for such conditions to be construed as a disabilities.

In Meiorin, the Supreme Court of Canada said employers must consider:
•Have alternative approaches been investigated that do not have a discriminatory effect?
•If alternative standards have been investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
•Is it necessary to have a single standard for the employer to meet its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
•Is there a way to do the job that is less discriminatory while still accomplishing the employer’s business objectives?
•Is the standard properly designed to ensure the desired qualification is met without placing an undue burden on those to whom the standard applies?
•Have other parties in the workplace — the union and the individual employee seeking accommodation — fully assisted in the search for a solution?

However, with psychological or psychiatric disabilities, the normal employee onus to communicate the existence of a condition appears to be relaxed. The employer may have the onus of initiating the inquiries required to determine if a psychological disability is the source of an employee’s inability to do her job. If a disability is found, or even suspected, the employer must take steps to evaluate and implement the relevant initiatives to resolve the problem.

Due diligence as required by occupational health and safety law

In all Canadian jurisdictions, occupational health and safety legislation requires employers to take all reasonable steps to ensure the health and safety at work of all employees. The reasonable steps in any given situation will vary depending on the circumstances. However, it is clear an employer cannot simply be reactive to workplace safety issues. In certain situations, an employer will be expected to actively inquire and assess whether there is a workplace safety issue related to an employee’s apparent illness or a report she may be suffering from an illness. In the case of a suicidal or depressed employee, reasonable steps to ensure her safety and welfare should be taken, regardless of how the condition was discovered.

Depression and anxiety disorders present unique, practical and legal challenges in relation to the duty to accommodate. For instance, employees who suffer from such conditions may be less inclined to recognize they have a disability that requires accommodation. While the law stipulates a disabled employee must inform the employer of her need for accommodation and to co-operate in the search for reasonable accommodation, the situation becomes more complex when the employee fails to recognize her need or refuses to fully participate. Employers would be well served by implementing policies and procedures that are proactive in dealing with mental health issues. Making employees comfortable asking for accommodation, responding to accommodation requests in a timely manner and ensuring performance management processes are in place to identify and assist employees with disabilities are good practices.

When an employee is depressed and threatens suicide, an employer has a legal obligation to take reasonable steps to ensure the health and safety of the worker and co-workers are protected. It makes no difference whether the employer learns of the condition directly from the employee or becomes aware of it “through the grapevine.” An employer would be well advised to proactively inquire into the matter to determine whether or not there was a legitimate basis for concern.

For more information please see:

British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1907 (S.C.C.).
Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 CarswellQue 6436 (S.C.C.).
Entrop v. Imperial Oil Ltd., 2000 CarswellOnt 2525 (Ont. C.A.).
Berg v. University of British Columbia, 1993 CarswellBC 1261 (S.C.C.).

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].

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