Deborah Furtado and Rhéaume Perreault, lawyers, Fasken Martineau DuMoulin
The World Health Organization (WHO) estimates that depression will be the second leading cause of disability in the workplace by 2020. Psychological distress costs the Canadian economy over $30 billion every year. What basic information should employers know to be able to deal successfully with these issues? While not an exhaustive inventory, this text outlines certain key things that all managers should know.
Psychological distress: a disability?
Does psychological distress constitute a disability (“handicap”) as defined by the Charter of Human Rights and Freedoms (“Quebec Charter”), and do employers have a duty to accommodate? When an employee is absent from work due to psychological distress and there doesn’t seem to be any possibility for them to return to work, their employer is lawfully allowed to put an end to their contract. However, the employer must make sure not to violate sections 10 and 16 of the Quebec Charter, which prohibit discrimination on grounds of disability.
The Quebec Charter does not define a disability. The Supreme Court of Canada1, however, defines a “handicap” as being a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors.
As a general rule, mental disabilities, including psychological distress:
- Prevent the person from carrying out functions that are regularly performed by the majority of people,
- Are of an ongoing (rather than temporary) nature, and
- Are outside the person’s control.
If psychological distress affects the employee’s work performance or day-to-day functions in a continuous manner, it can be considered a mental disability and a “handicap” as defined by the Quebec Charter, and would therefore require the employer to accommodate to the point of undue hardship.
Understanding the duty to accommodate
An employer is expected to accommodate an employee with a disability. There are many ways this can be done, from changes to the employee’s work station to switching the employee to a part time schedule or assigning them a new position. However, when an employee who has been provided with accommodations is chronically absent, the employer will be considered to have met their burden of proof and established undue hardship if they can prove that the employee cannot return to the duties of their employment in a reasonably foreseeable future. The termination of employment is a consequence not of the employee’s disability, but of their inability to consistently perform their work and thus fulfill their basic obligations.
In short, the employer must make a reasonable effort to maintain an employment relationship. Efforts undertaken by the employer should be analyzed on a case-by-case basis, starting from the first measure to accommodate the employee rather than from the end date of the employment.
It should be noted that when an employer questions an employee’s diagnosis or is unable to come to an agreement with them (or their union) to provide reasonable accommodation, the employer can call upon a medical expert to obtain a return-to-work prognosis and determine whether the employee can work consistently in the foreseeable future.
Judicial decisions on employees with psychological disorders
In Commission des droits de la personne et des droits de la jeunesse v. Société de portefeuille du groupe Desjardins2, a physician recommended a progressive return to work over a period of two months for an employee who was on leave while dealing with a temporary mental health issue. The employer agreed to a progressive return to work, but over a period no longer than two weeks. At the end of the two weeks, the employee lodged a complaint with the Commission des droits de la personne et des droits de la jeunesse.
The Human Rights Tribunal concluded that the duty to accommodate without undue hardship implies that some duress is acceptable and that employers must go beyond a negligible measure of effort. The Tribunal considered that the employer did not fulfill its duty to accommodate, since the employee’s return to work over a period of two months, rather than two weeks, would not require greater effort from the employer.
In Centre hospitalier de l’Université de Montréal, pavillon Hôtel-Dieu and Syndicat des infirmières et infirmiers de l’Hôtel-Dieu3, a nurse dealing with chronic anxiety was dismissed for a high level of absenteeism and his incapacity to work on a regular, predictable basis. The arbitrator accepted evidence from experts that the employee was expected to relapse in the near future and concluded that the employer was unable to accommodate the complainant without undue hardship.
- Psychological distress is defined as a “handicap” by the Quebec Charter, and employers must fulfill their duty to accommodate.
- Even if an employee is fit for work at the time of dismissal, the dismissal can be upheld if it is medically unlikely that the employee can sustainably perform their duties due to psychological distress.
- An employer that dismisses an employee who is able to work on a regular and predictable basis may be the subject of a complaint (or a grievance, if applicable) of dismissal without good and sufficient cause before a court of law and of a complaint before the Human Rights Tribunal for violation of the Quebec Charter.
1.Québec (Commission des droits de la personne et des droits de la jeunesse), c. Montréal (Ville de),  1 R.C.S. 665.
2.Commission des droits de la personne et des droits de la jeunesse c. Société de portefeuille du groupe Desjardins  R.J.Q. 2049 (T.D.P.).
3.Centre hospitalier de l’Université de Montréal, pavillon Hôtel-Dieu et Syndicat des infirmières et infirmiers de l’Hôtel-Dieu,  R.J.D.T. 1494 (T.A.).
Me Rhéaume Perreault
Rhéaume Perreault has been recognized as one of the best lawyers in labour and employment law by Woodward/White's “The Best Lawyers in Canada” for several years. He holds a law degree from the Université du Québec à Montréal. He also holds a bachelor's degree in industrial relations from the Université de Montréal.
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