Mental Illness in the Workplace: Legal Issues, Pre-emptive Solutions

Mental Illness in the Workplace: Legal Issues, Pre-emptive Solutions

By: Joseph Oppenheim and Lauren Barteluk

Presented at BOMA Healthy Workplaces Breakfast

 

Introduction

  • There are various forms of mental health concerns ranging from mild depression and anxiety to severe depression and anxiety, bi-polar disorder or schizophrenia
  • Why is mental health in the workplace an issue?
    • The WHO organization estimates more than 450 million people globally suffer from mental disorders – the majority of them suffer from depression
    • By 2030, depression will be the number one cause of disability, outranking ischemic heart disease and diabetes. (WHO)
    • 20% of Canadians will personally experience a mental illness in their lifetime (CMHA) (Centre for Addiction and Mental Health)
    • Approximately 8% of adults will experience major depression at some time in their lives (CMHA)
    • Anxiety disorders affect 5% of the household population, causing mild to severe impairment (CMHA)
    • People with a mental illness are twice as likely to have a substance use problem compared to the general population
    • Nearly 4,000 Canadians die by suicide each year – an average of almost 11 suicides per day. Suicide is second only to motor vehicle accidents as the leading cause of death in 15-24 year old Canadians (CMHA, Centre for Addiction)
      • The suicide rate for males is 16.8 per 100,000 population (WHO)
      • The suicide rate for females is 5.5 per 100,000 population (WHO)
      • Suicide accounts for 16% of all deaths among 25-44 year olds (CMHA)
    • The disease burden of mental illness and addiction in Ontario is 1.5 times higher than all cancers put together and more than 7 times higher than that of all infectious diseases (Centre for Addiction)
    • In any given week, at least 500,000 employed Canadians are unable to work due to mental health problems. This includes: (Centre for Addiction)
      • Approximately 355,000 disability cases due to mental and/or behavioural disorders
      • Approximately 175,000 full-time workers absent from work due to mental illness
    • In 2010, mental illness was found to be associated with more lost work days than any other chronic condition, costing the economy $51 billion annually in lost productivity (Centre for Addiction, in 2010 reporting on a recent study)

IMPORTANCE OF ADDRESSING MENTAL HEALTH AS AN EMPLOYER

  • Mental health issues can end up costing a company a significant amount of money
    • Studies show that stress contributes to many mental health issues and is a major factor in absenteeism costs, turnover and retention costs, disability claims, accidents, EAP, and drug plan costs
  • In many cases a legal obligation for employers may arise in relation to the mental health of employees such as liability under human rights legislation
  • The effects of mental health problems may also affect the morale of other employees and influence productivity and efficiency
  • Employers may feel a moral or ethical duty to increase their awareness

PRESENTEESIM/ABSENTEEISM

  • Employees with mental health issues are likely to be:
  • absent from the workplace (absenteeism), or
  • if present in the workplace, less productive and prone to making costly mistakes (presenteeism)
  • Studies of some chronic conditions and health risk factors found that lost productivity from presenteeism was 7.5 times greater than productivity loss from absenteeism
  • For some stress related health problems such as heart disease, hypertension, migraines, and neck or back pain, the ratio increased to 15 times greater
  • Presenteeism affects quantity and quality of work, leading to work related accidents, equipment breakage and conflicts and related problems

 

DISABILITY:

  • Mental health problems and illnesses are rated one of the top three drivers of disability claims by more than 80% of Canadian employers (Mental Health Commission of Canada)
  • In 2008, 75% of short term disability and 79% of long term disability claims related to mental illness in Canada
  • The cost for mental health leave is, on average, double the cost of leave for a physical illness (Centre for Addition)
  • In 2010 the cost to a company for a single employee on short term disability due to mental health concerns was approximately $18,000 (Centre for Addiction)
  • It is estimated that for those employees that have access to treatment, their employer will save between $5000 to $10,000 per employee per year in the cost of prescription drugs, sick leave, and average wage replacement

 

PREVENTION

  • Legal obligations are the minimum standards – it is preferable to maximize the chance that an employee will recover without maximally burden the employer
  • There are ways to help prevent mental health issues, or to minimize their impact once present:
    • implement policies on bullying, harassment, discrimination, and intolerance
    • implement policies on personal space, time off, and breaks
    • watch for the following in employees:
      • lateness
      • reduced quality of work (i.e. more mistakes or errors)
      • unusual sloppiness in appearance
      • changes in sociability
      • performance issues
      • taking an increased amount of time off
  • There is often a reluctance to disclose mental health issues because of feelings of shame, fear of being judged or concern about employment being terminated. Studies have found that:
    • 49% of those who feel they have suffered from depression or anxiety have never seen a doctor regarding the problem (CMHA)
    • 39% of Ontario workers would not tell their managers if they were experiencing a mental health problem (Centre for Addictions)
    • Only 30% of people with depression seek help
  • If you create a safe environment for employees to disclose their problems, you will likely be part of the solution and expedite recovery.
  • If you note a change in an employee’s behaviour or suspect a mental health issue:
    • approach the employee in a non-confrontational manner
    • listen, but don’t counsel
    • don’t make assumptions or try to diagnose the problem
    • don’t expect full disclosure
    • an employer is not entitled to a diagnosis don’t place blame
    • ask how you can help
      • have a list of resources on hand
      • mention that accommodations can be made
      • ask if there is anything specific in the workplace triggering or aggravating the situation
    • continue to include them in the office environment
    • allow them some time away from the office if they so desire
      • if they take time off, make them feel welcome and appreciated upon their return
    • allow breaks during the day – even a ten minute break every two hours will increase productivity and effectiveness (CMHA)
  • Early recognition and action may:
    • help trigger an employee’s awareness that the employer is aware that something is amiss and make it more likely they will seek help (even if not from you)
    • expedite an employee’s progress
    • increase appreciation of the employer
    • reduce the likelihood of issues such as presenteeism

 

LEGAL OBLIGATIONS

  • Certain circumstances may create a legal obligation to consider the health of employees
  • Under the Alberta Human Rights Act, an employer cannot discriminate against an employee on the basis of disability, and must accommodate employees that have disabilities
    • many mental health illnesses constitute a “disability”

 

The Duty to Accommodate

  • An employer may have a legal duty to accommodate up to the point of undue hardship
    • Accommodation is making changes in the workplace so that the affected employee can be a functioning employee and perform their work
    • Undue hardship means the employer has a duty to accommodate unless it is completely unreasonable to do so – This is a high standard
      • forexample, while an employer might be expected to install a wheel chair ramp, they may not be expected to move to another building across town
  • A duty to accommodate arises when an employer knows or ought to know (i.e. it is reasonable for the employer to be aware) there may be a potential disability
    • at this stage there is an obligation to make reasonable inquiries to determine if accommodation is required
    • a duty may also arise when there is wilful blindness towards an issue

 

Accommodation 

  • Accommodation of mental illness may require some creativity on the employer’s part such as:
    • flexible hours including more breaks, shorter days or fewer working days per week
    • a different office space depending office crowding or access to light
    • modified instructions, additional time to learn tasks, and adapted methods of providing feedback
    • modified job duties
  • Involving the employee in the process of accommodation will likely make the employee more satisfied with the outcome
  • Keep records of any accommodations
  • Take confidentiality into consideration and be discrete about the situation and who is involved
    • if disclosure occurs or is necessary reassure the employee that any disclosure or accommodation will not affect their employment or make them subject to any harassment – Keep an active watch on their treatment in the work environment

 

CASE EXAMPLE: MACLEOD V LAMPTON (COUNTY) [ONTARIO HUMAN RIGHTS]

  • Mental health issues are commonly litigated, which is a long and costly process
  • MacLeod is a case of an employer who decided to permanently remove an employee who had bi polar disorder and various performance issues, including being verbally abusive to his staff from his managerial duties
  • There is a balance between protecting employees on the one hand and accommodation of a disability on the other
  • In this case, the employer went too far in one direction by permanently removing the employee from his duties

 

Review of the Facts

  • When hired in a management role, the employee did not disclose his mental illness (bipolar disorder)
  • In 2007/2008 the employee’s doctor switched his medications which caused some of his bipolar disorder symptoms to become more prominent
  • In the summer of 2008, he went off work for his condition
  • While he was off work, other staff reported that he was verbally abusive and not following rules and policies with respect to new hires, purchase of excessively expensive equipment, etc.
  • When he attempted to return to work, the employee told the employer of his bipolar condition.
  • The employer temporarily refused to allow him to resume his duties and assigned him to work in a different building in special projects.
  • This made his depression significantly worse and he went off work again
  • Ultimately, the employer conducted an investigation and permanently removed all managerial duties from the employee because it was found that he had engaged in wilful misconduct

 

Resulting Litigation

  • The employee initiated a human rights complaint against the employer for discrimination and failure to accommodate
    • The employer was deemed to have ought to known or suspected that the employee had a disability under the legislation
  • The employer believed that the duty to accommodate was met by terminating his employment
  • The Tribunal agreed that discussion and investigation before allowing him to return to his previous managerial role was appropriate. However, it was discriminatory when the employee was permanently removed from his duties, and the question of how to meet the duty to accommodate was not considered
  • The tribunal’s focus was on the employer’s procedural obligations:
    • to obtain all relevant information about the employee’s disability.
    • to consider how the employee could be accommodated

 

The importance of this case:

1. The remedy imposed by the tribunal:

  • The employee was reinstated to his previous position
  • Initially with less stressful duties and gradually increasing over a year to his regular duties
  • Trainingwas ordered for senior staff on bipolar disorder and how to accommodate it
  • The parties were required to sign a protocol dealing with disorder-related behaviour and how it would be accommodated
  • The employer had to retain an expert in workplace restoration to repair the damaged relationship between the employee and the staff he had verbally abused
  • $25,000 in damages was awarded for harm to dignity, feelings and self-respect.

2.  The case was very expensive and time consuming:

  • 17 witnesses were heard, including the applicant, his wife, his managers, supervisors, other employees who worked under him and two expert psychiatrists
  • Over $100,000 in legal fees
  • After the decision, some of the employees sought reconsideration of the decision, which was denied, but still required the involvement of the employer

 

Takeaways from the Case

  • Employers need to be proactive
  • Arguably, this could have been avoided by:
    • Approaching the employee when behavioural changes were initially noticed
      • Perhaps the employee would have sought treatment before he started to engage in some of the reported behaviour
    • Handling the employee’s return to work differently
      • The evidence found his return to works were demoralizing, segregating, and demeaning because he was isolated and told not to contact others from his previous department
        • This ultimately worsened his depression

 

DESIGN INFLUENCING MENTAL HEALTH

Real World Example

Design techniques have been found to improve mental health in environments such as the work place or mental health institutions

  • Some of the design ideas below may be worth considering if mental health is ever being addressed in an office space
  • The following refers to a guide utilized by Veterans Affairs for the design of a mental health institution – Department of Veteran Affairs design guide for mental health institutions: December 2010 (found online)
    • The design of the space is important because of :
      • the psychological impact it has on its users
      • facility design impacts the beliefs, expectations, and perceptions patients have about themselves, the staff who care for them, the services they receive, and the larger health care system in which those services are provided
    • Its influence on how staff identify and interact with patients and the environment
  • This health facility (Veterans Health Administration) deals with all mental health problems experienced by veterans including major depressive disorder, PSTD, addictions, anxiety, panic disorders, OCD, bipolar, and schizophrenia
  • The design focused on patient issues such as vulnerability to stress from noise, lack of privacy, poor or inadequate lighting and ventilation

 

Office Space Design

  • Around 33% of our lives are spent in our offices
  • People in industrialized countries spend 90% of their time indoors
  • Studies show that the most significant factor affecting the ability to focus is a person’s physical environment
    • A well-designed office can increase productivity by 20%
  • Office space design is becoming a big focus in certain companies:
    • Google is spending one billion dollars to develop office spaces in London which include an indoor football field, in house showers, climbing wall, roof garden, swimming pool, officer on wheels
  • Principles for office space design which promote mental health and productivity (various sources):
    • Office Space Locations
      • Positioning workstations away from busy aisles and work areas reduces distraction and noise
        • Glass panels can also help to reduce distractions and the need for privacy
      • Allowing employees to be seen and connected makes them feel like they are part of the organization and not simply isolated
        • Design the office so that employees bump into each other at the printer, copier, etc.
      • Common areas can provide opportunities for unplanned social interactions between group members
        • These interactions foster social support, which buffers stress
        • Workplaces in which employees report good communication and strong social support are healthier, predict higher job satisfaction and morale, and lower absenteeism and intent to turnover
      • An open environment may increase transparency and communication and allow leaders to have a better sense of when employees are struggling
    • Views
      • Access to nature through images, views, contact and natural windows improves attention and focus
        • More attractive views from offices has been linked with reduced discomfort and better sleep quality
      • By law in many European countries, employers must provide window access within a prescribed distance from each desk or workstation
    • Respite Rooms
      • Provide a quiet place to recharge
    • Air Quality
      • Good air quality in commercial buildings contributes to reductions in absenteeism due to asthma, respiratory allergies, depression, and stress.
      • One Occupational Safety Health Administration study estimates thatpoor air quality in office environment costs employers 15 billion dollars per year due to worker inefficiency and sick leave
    • Lighting
      • Influence of lighting:
        • poor office lighting can cause fatigue, eye strain, headaches, and irritability
        • people in western countries are believed to have too little daily exposure to light
        • access to daylight has been shown to reduce depression, improve absenteeism, increase productivity, and improve employee satisfaction.
        • morning light exposure is more effective than exposure to evening light in reducing depression
    • Lighting in office spaces:
      • mirrors can be used to bounce light around the room
      • provide individual control over lighting levels
        • dimmer light levels foster superior creativity in terms of idea generation
        • brighter light levels are more conducive to analytical and evaluative thinking
    • Colours
      • colours can affect our mood
        • blue elicits productivity.
        • blue and green enhance performance on tasks that require new ideas
        • cooler colours (Green, blue, purples) are associated with beingrelaxing and inviting
        • warmer colours (yellow, oranges, reds) are associated with warmth and creativity
        • lighter colour hues help convey a sense of calm, airiness, and openness
        • red is linked with superior performance on tasks requiring attention to detail
      • using an abundance of dark colours can make an office space feel cramped
      • bold and bright colours should be used sparingly or only on an accent wall
      • pops of colour at desks such as a bright red stapler or a blue pen holder can eliminate bland or dull feelings
    • Ceiling Heights
      • a 2007 study linked higher ceilings with feelings of freedom and a more abstract relational thinking style
    • Plants
      • lower stress levels and reduce pollution levels in the office
    • Temperature
      • warmer temperature rooms make people more productive
      • provide individual controls for each office