The modern workplace has seen a rise in requests for stress and mental health leave. In a labour market that is still recovering from the aftermath of the Pandemic, how can employers best manage these requests and keep business operating smoothly?
While poor mental health is certainly a recognized legitimate health concern, accommodating a leave of absence can place tremendous strain on a business’ operations.
Failure to manage these requests appropriately exposes the employer to potential claims against them for wrongful dismissal, constructive dismissal, or discrimination under the Ontario Human Rights Code.
Before responding to a request for stress leave or mental health leave, it is imperative that employers understand their legal obligations.
What is ‘stress’ or ‘mental health’ leave of absence?
Whether it be classified as a mental health leave or stress leave, such a request involves an employee taking an extended period of time off work to deal with or recover from stress-related illnesses, injuries, and other emotionally challenging circumstances.
Employees experiencing stress, burnout, or other mental conditions can look to the following to support a request for leave:
- The ESA (Sick Leave): Up to 3 days of unpaid sick leave per calendar year under Ontario’s Employment Standards Act (the ESA). Sick Leave is not limited to physical illness – it can also be used for mental conditions or stress leave in order to cope with stress, anxiety, or burnout;
- The Human Rights Code (Medical Leave): Time off as advised by a health practitioner for a disability under the Ontario Human Rights Code (the Code). The Code recognizes that the term ‘disability’ includes mental health disabilities;
- The Employment Contract: If an employment contract, including a collective agreement, or company policy, provides a greater right or benefit than the sick leave standard under the ESA, then the terms of the contract, agreement, or policy apply instead of the standard.
Is an employee entitled to paid leave?
Unless otherwise stated in an employment agreement, an employer is under no statutory obligation to pay an employee’s salary while on leave. However, the employer will be required to continue benefits.
Can the employer challenge the validity of the employee’s request?
As a general rule, the employer should not challenge the validity of the employee’s condition. However, an employer is entitled to make reasonable requests for more information for the purpose of assessing the employee’s needs and determining appropriate accommodations.
An employer is required to take requests for accommodation in good faith. In other words, the duty to accommodate is triggered from the first moment the employee communicates that a disability exists, even where there is no supporting documentation.
When does stress or poor mental health amount to a disability?
It may be unclear to the employer that the employee is experiencing a mental health disability. Mere assertions of commonly experienced symptoms, such as statements that the person experiences “stress”, “pain”, or “feels overwhelmed”, may not be enough to establish a disability within the meaning and protection of human rights legislation.
It is recommended that employers seek legal advice to understand whether their duty to accommodate has been triggered or not. Until this is clear, the employer should refrain from declining the request.
What medical information may be requested?
An employer may request a medical note from a qualified health practitioner, such as a doctor, nurse practitioner, or psychologist. However, an employer cannot ask an employee for information about the diagnosis or treatment of a medical condition.
If the employee is requesting a sick leave, the employer may only request the following information:[1]
- The duration or expected duration of the absence;
- the date the employee was seen by a health care professional;
- whether the patient was examined in person by the health care professional issuing the note.
If an employee is requesting leave relating to a mental health disability, the employer’s duty to accommodate will be triggered and the employer will arguably require additional information. In these circumstances, the information accommodation seekers may generally be expected to provide to support their accommodation request includes:[2]
- that the person has a disability;
- the limitations or needs associated with the disability;
- the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job;
- regular updates about when the person expects to come back to work, if they are on leave.
It is important to note that the employee is under no obligation to disclose the nature of the disability, only that a disability exists.
In rare circumstances, where an employer legitimately needs more information about the person’s disability to determine the appropriate accommodation or where the person’s needs are complex or unclear, an employer may request more information.
It is recommended that employers seek legal advice to understand the limits to a request for information and the timing that these requests should be made.
Independent Medical Examination
In extremely limited circumstances, and only for the purpose of determining an appropriate accommodation where needs are otherwise unclear, the employer may ask that the employee attend an independent medical examination (IME).
However, an IME cannot be used to “second-guess” a person’s request for accommodation.[3] There must be an objective basis for concluding that the initial medical evidence provided is inaccurate or inadequate.
Further, while attendance at an IME can be suggested, the employee cannot be made to attend.
Is an employee entitled to return to their role?
If the employee’s leave is associated with a mental health disability, the employee will be protected by the Code and will generally have the right to return to their original position when the disability improves.
However, this element of the duty to accommodate is not absolute. According to the Human Rights Tribunal of Ontario:[4]
The obligation to keep the employee’s job available does not extend indefinitely and is limited by undue hardship involved in keeping the job available, but it generally extends for more than three months. [Emphasis added]
When does the ‘duty to accommodate’ become ‘undue hardship’?
Short of undue hardship, the employer has a duty to make the arrangements required to enable the disabled employee to return to the workforce.
Grounds for undue hardship exist when the work accommodation would cause the employer to suffer excessive adversity. This includes:
- The costs related to the accommodation directly affect the overall survival of the organization;
- If doing so would compromise safety or health.
As a general guideline, the employer will be required to demonstrate that all reasonable means of accommodation have been exhausted and that any alternative options for accommodation are unreasonable or impractical (i.e. undue hardship).
Can you Terminate Someone while they are on a ‘stress’ or ‘mental health’ leave of absence?
If an employee is terminated without cause while on a leave of absence, they may be owed a full severance package. In addition to severance, if a prima facie disability is found to exist and the employee believes that they have faced discrimination on this ground, the employer could face a claim for human rights damages or wrongful termination.
Conclusion
When responding to a request for a stress or mental health leave of absence, employers must always avoid challenging the validity of the employee’s condition.
An employer’s legal position will differ depending on whether the sick leave provisions of the ESA apply or whether the employee is experiencing a disability protected by the Code.
Overall, it is important to remember that the duty to accommodate may trigger even before any medical documentation is provided. If it is unclear whether an employee is experiencing a disability, initial responses should be careful to balance a potential duty while at the same time refraining from making unwarranted concessions.
If the employee is not experiencing a disability, the employer will be under no duty to accommodate requests from an employee to return to their role. Further, unless otherwise stated in an employment agreement, an employer is under no obligation to pay the employee’s salary during the leave.
Failure to manage these requests appropriately exposes the employer to potential claims against them for wrongful dismissal, constructive dismissal, or discrimination under the Code.
If an employer finds itself in an uncomfortable legal position, it is recommended that they seek tailored legal advice that supports their business objectives.
Citations:
- Government of Ontario, “Your guide to the Employment Standards Act: Sick leave” (28 April 2023), online: <www.ontario.ca/document/your-guide-employment-standards-act-0/sick-leave#:~:text=of%20the%20evidence.-,Medical%20notes,%E2%80%9Creasonable%20in%20the%20circumstances%E2%80%9D.>.
- Ontario Human Rights Commission, “Policy on ableism and discrimination based on disability: Duty to accommodate”, online: <www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/8-duty-accommodate#_edn233>.
- Canadian Union of Public Employees, Local 831 v. Brampton (City), [2008] OLAAOLAA No. 359 (QL).
- Carter v. Chrysler Canada Inc., 2014 HRTO 845 (CanLII) at para 145, citing McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 SCR 161.
Keira Zlahtic