Mental Health in the Workplace: The Legal Challenge

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Presented by by P.A. Neena Gupta
Partner, Waterloo Region

Published in: Business, Health & Medicine
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Mental Health in the Workplace: The Legal Challenge

  1. 1. Mental Health in the Workplace: The Legal Challenge Presented by P.A. Neena Gupta
  2. 2. Mental Health in the Workplace • Approximately 20% of the adult population has a mental health problem • Enormous cost to the economy: • • • • loss of productivity employment income medical/welfare costs caregiver costs 2
  3. 3. Mental Health in the Workplace • Workplace stress is a significant factor • 40% of U.S. workers report their job to very or extremely stressful • Blurring of work/private domain through technology • Downsizing (“doing more with less”) • Job uncertainty/unemployment/contingent employment • High rate of change in workplace (technology, globalization, competition) 3
  4. 4. Legal Response is Developing • Ontario Human Rights Code • Workplace Safety and Insurance Act • Occupational Health & Safety Act • Common-law obligations: • Implied obligation theory in contracts • Obligation not to cause foreseeable harm in tort 4
  5. 5. Human Rights Code • Ontario Human Rights Code • Cannot discriminate on the basis of disability or “perceived disability” • Obligation to accommodate disability up to the point of undue hardship, including: • Procedural obligation • Substantive obligation • Mental illness and clinical depression are disabilities • “Stress” is not an illness or disability, but a symptom 5
  6. 6. Lane v. ADGA Group • ADGA needs a Quality Assurance Analyst to supervise 6 to 8 junior technicians • Work is highly-sensitive (DND) • Work is highly deadline-oriented and time pressured • Hires Lane, who has a good track record with similar companies 6
  7. 7. Lane v. ADGA Group • Lane lies about his absenteeism record in the application • Had had several bouts of absences due to bipolar disorder/schizotypal personality disorder • Invites his immediate supervisor to intervene if she observed any inappropriate behaviour/speech patterns on third day of employment 7
  8. 8. Lane v. ADGA Group • Discloses on Day 5 that he has bipolar disorder with indication that “abuse by co-workers had been a trigger in the past” • Would need to take time off work to ward off fullblown mania from time to time • Asked her to keep information confidential • They agree to discuss next Tuesday 8
  9. 9. Lane v. ADGA Group • On the Tuesday, Lane was in pre-manic state • Perceives a casual joke as a death threat • Exhibits clear manic symptoms • Company concerned that Lane unable to meet attendance and security • Terminated as probationary employee 9
  10. 10. The Tragic Consequences • Lane goes into full-blown mania and is hospitalized • Severe depression • Unable to find work, loses home and family • Eventually, doctor confirms that he is permanently disabled 10
  11. 11. The Tribunal Case • ADGA testifies that given his medical condition, he could not be accommodated • Unrealistic to have another employee monitor his state of mania • Lane had been hired as supervisor of 6 to 10 testers who themselves were inexperienced • Schizotypal personality disorder (extreme discomfort interacting with people; misinterpret situations, paranoia) not consistent with position • Stress appeared to be a trigger and job was clearly stressful (tight deadlines, close to DND testing stage) 11
  12. 12. The Decision • ADGA knew employee had medical issues • Did not make any inquiries of whether there could have been an accommodation that would enable Lane to work • Acted precipitously in terminating Lane • Could have put him on leave • Called wife/doctor as Lane had advised • Triggered a major manic episode 12
  13. 13. The Decision • Tribunal: • ADGA had procedural obligation of accommodation • Should have inquired as to whether realistic to integrate Lane into the workplace • Cannot decide until procedural obligations completed • Should have considered sensitizing “fellow workers and supervisors” to spotting indicators of hypomanic state • Should have avoided terminated precipitously 13
  14. 14. Damages • Lost income for 8 months (capped by Lane’s own medical condition) – about $35,000 • $35,000 in damages for breach • $10,000 for mental distress • Training obligations of all employees • Significant legal costs 14
  15. 15. Moral of the story! • Procedural obligation to make a genuine effort to investigate possibility of accommodation necessary • Need to open up dialogue regarding possible accommodation • Possible that Lane wouldn’t have been medically cleared for job, but ADGA jumped to conclusions • GET MEDICAL AND LEGAL ADVICE! 15
  16. 16. Fair v. Hamilton-Wentworth School • Sharon Fair started work with the school board on October 24, 1988 • Promoted to Supervisor, Regulated Substances, Asbestos in September 1994 • Develops generalized anxiety disorder in fall, 2001 • Receives STD and LTD 16
  17. 17. Fair v. Hamilton-Wentworth School • Independent medical evaluation states: “Specifically, Ms. Fair would not be able to function in a job which entailed responsibility for health and safety issues, nor any duties which would leave her at risk for personal liability. Outside of these limitations and restrictions, Ms. Fair is otherwise capable of gainful employment ….” • By law, any supervisor has personal liability for health and safety 17
  18. 18. Fair v. Hamilton-Wentworth School Board • Fair testifies she was able to return to supervisory duties that didn’t involve the special stress of asbestos removal • School Board takes position all supervisory positions have health & safety liability • School Board did not seek clarification regarding whether supervisory role in less stressful position possible 18
  19. 19. Fair v. Hamilton-Wentworth School Board • School Board did not consider placing her in a position (instead of running job competition) • Terminated Fair’s employment on the basis of inability to accommodate disability in a supervisory position 19
  20. 20. The Tribunal Decision • School Board did not make genuine effort to accommodate • Failed to seek clarification • Consider other roles beyond pre-disability role • Damages: • June 2003 to date of judgment (March 2013) • Wages, lost pension, retroactive CPP, medical & dental • $30,000 for general damages 20
  21. 21. The Tribunal Decision • Reinstatement to a suitable alternative employment (assuming a six month training period) • Adjusted seniority • Should not involve “exposure to personal liability for health and safety similar to the potential liability caused by working with asbestos)” • Award likely worth over $450,000 21
  22. 22. Lessons learned! • Be pro-active in considering all options for reintegrating employee in workplace • Document all discussions with the employee regarding accommodation • Seek clarification • Do not terminate unless you have exhausted accommodation possibilities 22
  23. 23. Lessons Learned! • Regular rules regarding job postings, job competitions and even seniority may have to be compromised to accommodate disabled worker • Remember, employee entitled to adequate accommodation, not perfect accommodation 23
  24. 24. Egregious workplace harassment • Richard Ayotte was a “critical, demanding, loud and aggressive manager” at Bell Mobility • Employee, Marta Piresferreifa, was nervous, sensitive, did not deal well with criticism. • Extremely critical year-end review – “emotional when things are not going right … needs to take ownership” • Ayotte considering a PIP 24
  25. 25. Egregious workplace harassment • Ayotte upset when Piresferreira failed to arrange a meeting • Yelled and screamed at her for failure to set up meeting • Ayotte arranged meeting with client in minutes • Piresferreira asked her to read an email on blackberry; Ayotte didn’t want excuses • He pushed Piresferreira about a foot away into a cabinet • Piresferreira comes into office to tell Ayotte that the pushing inappropriate 25
  26. 26. Egregious workplace harassment • Ayotte does not apologize and tells her “get the hell out of my office” • Advises her that PIP will be forthcoming • Piresferreira complains and is never interviewed – Bell accepts that event occurred • Ayotte minimizes the pushing – blames Piresferreira for provoking him 26
  27. 27. Egregious workplace harassment • Bell Mobility does give written reprimand and requires Ayotte to attend courses (which Ayotte does); Bell Mobility accepts event occurred • Requires Ayotte to apologize, but Piresferreira does not wish to attend meeting • Richard Ayotte not terminated • Piresferreira sues 27
  28. 28. Egregious workplace harassment “In my view, it is reasonably foreseeable that a person of ordinary fortitude would suffer serious psychological injury if that person was regularly yelled and sworn at by her manager/supervisor/boss, was told by the manager/supervisor/boss that she did not know what she was doing, was not given the opportunity to explain her actions or defend herself, was pushed by the manager/supervisor/boss who at the time was clearly angry and out of control, and was immediately told that she would be put on probation or issued a PIP.” Trial Judge Aitken J. • Trial judge awards approximately $750,000 in damages 28
  29. 29. Damages at the Court of Appeal • One year’s pay in the amount of $87,855 • Damages for the manner of dismissal, $45,000 • Damages for the battery (assault) - $15,000 • No damages for “negligent infliction of mental distress” • Damages for “intentional” infliction not possible on facts 29
  30. 30. Overview • Occupational Health & Safety Act (Ontario) • Obligation to provide a “safe” workplace • Obligation to have policies in place to deal with bullying and harassment • Obligation to train managers, supervisors and employees 30
  31. 31. Workplace Safety and Insurance Act • Will cover “mental stress” that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment; chronic stress not covered • Does not provide benefits for mental stress caused by decisions or reactions relating to worker’s employment, work allocation, discipline or termination • May change depending on BC court case, which challenges constitutionality of limited coverage for mental stress 31
  32. 32. Conclusion • Mental health the new frontier • Racial Discrimination (1960s) • Gender Discrimination (1970s) • Rights of the Disabled (1990s) • Workplace Violence/Domestic Violence (2000s) • Mental Health (the current frontier) 32
  33. 33. Thank You P.A. Neena Gupta Gowling Lafleur Henderson LLP Barristers & Solicitors 50 Queen Street North Suite 1020 Kitchener, ON, N2H 6M2 Direct Tel: 519.575.6910 Direct Fax: 519.571.5001 Email: neena.gupta@gowlings.com Visit me on LinkedIn and Twitter @cdn_employer montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london

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