Atlantic Employers’ Counsel – Winter 2016
THE EDITORS’ CORNER
One day, the line between mental and physical disabilities may not be so pronounced, but, for now, distinctions are still drawn between Employee A with, for example, diabetes and Employee B with, for example, depression. Both employees are dealing with serious health conditions but Employee B’s condition can present additional challenges because it can be difficult to “see” and difficult to understand.
MENTAL HEALTH AND THE DUTY TO ACCOMMODATE
Employers can face many challenges when dealing with employees who are struggling with a mental health issue. Illness and disability affecting employees can cause staffing/absenteeism challenges and morale problems with other employees. Barriers to managing the return to work process and re-integration into a productive workforce often arise.
THE DUTY TO INQUIRE: THE PROBLEM WITH TURNING A BLIND EYE
You have heard this scenario before: An employee is constantly showing up late (or not showing up at all), being insubordinate or argumentative, or worse – completely unmanageable, so the employer then dismisses the employee. The employee then files a grievance or a human rights complaint stating that he or she suffers from a disability and the dismissal was discriminatory.
THE SCOPE OF ACCOMMODATION OF MENTAL HEALTH ISSUES – WHAT ABOUT STRESS?
There is growing understanding of the need to accommodate mental health issues in the workplace, not only due to human rights obligations but also to optimize employee productivity. However, the boundaries of employers’ obligations from a human rights perspective are not always clear. This article focuses on stress-related accommodation requests: is an employer obliged to accommodate an employee having difficulty coping with stress?
DISCIPLINE AND MENTAL HEALTH IN THE WORKPLACE
Disciplining employees who are suffering from mental illness can pose particular difficulty for employers. Although there is a duty to accommodate mental illness in the workplace in the same way as any other disability, misconduct related to a mental health issue is not immune from discipline. Employers are well advised to be aware of the relevant considerations, risks and obligations with respect to managing a disabled employee’s performance.
Archive
Rick Dunlop In my December 15, 2016 article, Federal Government’s Cannabis Report: What does it mean for employers?, I noted the Report’s1 suggestion that there was a lack of research to reliably determine when individuals are impaired…
Read MoreRick Dunlop and Michelle Black On March 14, 2014, CanMar Contracting Limited (“CanMar”) granted a day off to two of its hard working and longer serving employees so they could spend time with their respective families. That…
Read MoreJoe Thorne and Meaghan McCaw The doctrine of unconscionability is an equitable remedy available in exceptional circumstances where a bargain between parties, be it a settlement or a release, may be set aside on the basis that…
Read MoreJonathan Coady After more than five years, the Prince Edward Island Information and Privacy Commissioner (the “Privacy Commissioner”) has completed her review into more than sixty records withheld by a local school board on the…
Read MorePeter McLellan, QC & Richard Jordan Introduction On February 21, 2017 the Nova Scotia Government passed Bill 75 – the Teachers’ Professional Agreement and Classroom Improvement (2017) Act. This Bulletin will provide some background to what is, today,…
Read MoreBruce Grant, QC and Justin Hewitt In the recent decision of Scotia Mortgage Corporation v Furlong1 the Supreme Court of Newfoundland and Labrador confirmed that where a law firm acts jointly for the borrower and lender in the placement…
Read MoreThe Supreme Court of Canada released its decision in Sabean v Portage La Prairie Mutual Insurance Co, 2017 SCC 7 at the end of January, finally answering an insurance policy question that had divided the lower…
Read MoreIn preparing for the 2017 proxy season, you should be aware of some regulatory changes and institutional investor guidance that may impact disclosure to, and interactions with, your shareholders. This update highlights what is new…
Read MorePerlene Morrison and Hilary Newman During the fall 2016 legislative sitting, the Province of Prince Edward Island passed legislation that results in significant changes to the Planning Act. The amendments received royal assent on December 15, 2016 and…
Read MoreJoe Thorne1 and Justin Hewitt2 In Unifund Assurance Company v Churchill,3 the Newfoundland and Labrador Court of Appeal considered the application of our rules of court and the common law as they relate to disclosure of documents produced in…
Read More