The question
Last month I changed medications for my mental health disorder. The adjustment has resulted in me being late for work several times, including one important presentation. They’ve scheduled a catch-up meeting with me next week and I know they’re going to bring up my tardiness. I haven’t disclosed my mental health diagnosis to my employer. What are my rights in this situation? Should I bring it up in the meeting, or beforehand?
The first answer
Kumail Karimjee, lawyer, Karimjee Law, Toronto
Your question engages human rights and specifically what’s called the duty to accommodate.
Human rights legislation provides employees with a right to be free from discrimination in employment based on several protected grounds, including disability. Your mental health condition, with the treatment (medications) which causes you to be late for work, is a disability. As an employee with a disability, you have a right to reasonable accommodation. Accommodation is not unlimited; however, an employer is required to accommodate up to the point of undue hardship. This standard contemplates that some level of hardship for the employer in accommodating your human rights-related needs is acceptable. You also have an obligation to cooperate in reasonable accommodation efforts.
In your case, the employer may not know that your lateness is related to a disability. As such, if you wish to seek accommodation for your disability, you need to communicate your situation to your employer. That said, you are not required to disclose the details of your diagnosis or specific treatment that you are receiving. However, if you wish to seek accommodation, you will need to advise that you have disability and human rights-related needs. If you do so, you and your employer will then need to engage in dialogue about your needs and what options for accommodation are available. Given this backdrop, it would make sense to advise your employer that you have a disability which has affected and may continue to affect your ability to be on time for work, and that you are seeking reasonable accommodation for this disability.
The second answer
Jadine (Jay) Lannon, lawyer, Forte Workplace Law, Surrey, B.C.
Pursuant to British Columbia’s Human Rights Code, employees with mental disabilities are protected from negative employment consequences that are related to their disabilities. These negative consequences could include discipline for being tardy if the tardiness is related to a disability.
Where an employee’s behaviour or performance is affected by a disability, employers have a duty to accommodate the employee to the point of undue hardship. What constitutes appropriate accommodation depends on the circumstances, but could include changing an employee’s working hours, removing some of their job duties or modifying performance expectations. The point of undue hardship is reached where there is nothing else reasonable or practical the employer can do to avoid the negative impact on the employee.
An employer’s duty to accommodate is not triggered until they know that an employee requires accommodation. In most cases, this requires an employee to disclose that they have a disability requiring accommodation. Employees are not required to disclose their entire medical history, but they do need to provide enough medical information to demonstrate that they have a disability that requires accommodation and what they can and can not do at work (often called “limitations” and/or “restrictions”). It is important to note that accommodation is a two-way street and employees have a duty to participate in the accommodation process, including by accepting reasonable accommodation.
It is better to disclose this information to your employer and to request accommodation in writing before the meeting. This way, your employer has a chance to review the information, consider available accommodations and request further information if necessary. If you wait until the meeting to disclose your need for accommodation, the accommodation process may be delayed.
If you are a unionized employee, it may be helpful to involve your union in these discussions, as human rights issues can be pursued using the grievance procedure.
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