Accounting for Mental Health Disabilities: Employers’ Proactive Obligations

In Halton Regional Police Services Board v Halton Regional Police Association, Arbitrator Jim Hayes upheld a union grievance and found that a longstanding collective agreement provision discriminated against employees with mental health disabilities. This decision is an important reminder to all employers that the distinct features of mental health disabilities require careful consideration when crafting illness-related policies. The often-invisible nature of mental illness should not result in an employee’s being excluded from accommodations available to those who have more visible health conditions. 

The grievance at issue

The decision addressed a grievance alleging that a vacation-related term in the parties’ collective agreement discriminated against employees with mental illness regarding the rescheduling of vacation. The impugned term provided for rescheduling of vacation in the event of illness only if the illness resulted in hospitalization or home care. The union argued that this term had a disproportionate adverse impact on the ability of individuals with mental illnesses to reschedule their vacations, as their conditions were less likely to require hospitalization.

Expert testimony was heard by the arbitrator and highlighted that the majority of mental health care does not involve hospitalization, making the collective agreement's provisions inaccessible for many with mental illnesses.

The arbitrator's decision

In line with established human rights jurisprudence that recognizes adverse effects discrimination and employers’ “proactive obligation to ensure that workplace rules take into account the diversity of human embodiment”, Arbitrator Hayes declared the contested provisions discriminatory against individuals with mental health disabilities. In particular, Arbitrator Hayes concluded that the Halton Regional Police Services Board “had a proactive obligation to consider how the provision would affect employees with mental disabilities and to draft the provision in language that applies inclusively to physical and mental disability.”

An important reminder and call for all employers

This decision serves as an important reminder and call for all employers to review their policies regularly to ensure that the unique nature of mental health disabilities have been appropriately and proactively accounted for. In doing so, it’s crucial to keep in mind that:

• Traditional indicators of the "seriousness" of an illness, such as hospitalization, may not be appropriate for mental health conditions;

  
  

• Any two people may be very differently impacted by the same mental health condition. As such, a more nuanced approach to requesting medical documentation and accommodation will likely be required; and

  
  

• Ensuring that an organization's management is regularly trained and retrained on the unique and diverse challenges faced by employees with mental health conditions can lead to more effective and empathetic management and accommodation strategies