By Victoria Chiappetta
The Ontario Human Rights Code prescribes that every person has a right to be free from discrimination because of a disability or a perceived disability in the area of employment. The Code, therefore, places a duty on employers to ensure that their workplaces are free from discrimination by accommodating those employees who suffer from a disability, to the point of undue hardship.
The first step in determining whether an employer has a duty to accommodate an employee suffering from stress is to determine whether the employee’s stress amounts to a disability, as that term is defined by the Code.
The Code defines “disability” at Section 10(1) of the Code, and includes such items as physical disability, a condition of mental impairment or a developmental disability, a learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, a mental disorder, or an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
Once an employee communicates to an employer that he or she is suffering from stress, which is affecting the employee’s ability to perform his or her job, an employer should immediately seek to obtain certain medical information from the employee to confirm whether or not the stress represents a disability and therefore requires accommodation.
An employer should request that the employee provide medical information indicating: whether the employee was seen by a physician; whether the physician made any objective findings; whether the stress the employee is suffering from will reoccur; whether medication was prescribed; the type and nature of any restrictions; the expected duration of any restrictions; whether the physician is aware of the employer’s modified work program, as described (if there is one); whether the physician is aware of the duties and tasks normally performed by the employee, as described; and whether, given the restrictions, modified work program or job description, the employee is able to return to work.
The employer should not accept the opinion of a family physician in terms of a diagnosis of stress. The treating specialist should advise as to how and why the diagnosis was made. A request that the employee be examined by a specialist should be made if a treating specialist does not exist.
The medical conclusions are extremely relevant, as, if employee’s stress is not a disability, there is no requirement under the Code to accommodate.
Once it is determined that the employee’s stress is a disability, the employer has a duty to accommodate up to the point of undue hardship.
Victoria R. Chiappetta is a lawyer with the Sault Ste. Marie office of Mathews, Dinsdale & Clark LLP. Her practice is restricted to labour and employment on behalf of management.
