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Taking Mental Health Leave From Work

Mental Health Leave

Mental Health Leave | Co-Authors Ian Hurley and Kimberley Sebag


Mental Health Leave

A globalized economy, technology with instant 24/7 connectivity and increased productivity expectations make workplaces operate at lightning speed. When you layer in lifestyle problems everybody faces, it is no wonder why employees are taking mental health leave with growing frequency. A death in the family, an ill child, marital strife or debt problems can throw individuals off, leaving them unable to perform at peak or cope with stress coming at them from multiple fronts.

If you are feeling overwhelmed, anxious or depressed, the first thing you will experience is lower than normal productivity levels. You may fall behind on deadlines, make mistakes and simply not cope. This can happen to anyone and often, a day or two of self-care might be all you need.

Requesting Mental Health Leave

In Ontario, all employees are entitled to 8 unpaid days off for personal emergency leave. Consult your employee handbook to find out if your workplace offers paid personal emergency leave. Employees should tap into these entitlements because your health, mental or physical, should always come first.

Asking for a couple of days off for mental health leave depends totally on the culture at your organization. In 2017, Madalyn Parker, an employee of Olark Live Chat made the news. She was exhausted and needed a break. She wrote an email to her coworkers explaining this. Her CEO replied to her, thanking her for her openness about this taboo subject. Madalyn posted this exchange on Twitter and what resulted next was a media storm. This story about her mental health leave went viral. Why?  Because this was an admirable example of a workplace that promotes mental health awareness. This CEO encouraged her to take advantage of their sick leave entitlements.

As employment lawyers with over 35 years in the business, we unfortunately know this is not the norm. Many workplaces do not consider the impact of workloads on employee mental health. Rather, they discriminate against employees suffering from anxiety and depression, often exacerbating the nature of the illness.

If your workplace is anything like Olark Live Chat, asking for mental health leave will be straightforward. However, if you feel it will cause stigma, judgment and repercussions, then you should simply request the time off without an explanation. You do not have to disclose your mental health problems to your employer.

Short Term Disability

If your doctor diagnoses you with mental health illness that requires you to take several weeks off from work, then employees with private health coverage should look into the short term disability (STD) benefits plan. Mental health leave for anxiety and depression are the top reasons for STD claims. These benefits are considered peace of mind contracts. They are sold with the specific purpose to tide you over with financial support when you fall ill.

But do they? Most claims for mental health problems are outright denied. You will, therefore, benefit from a one-hour consultation with us before you submit your STD application. We will review it for accuracy to maximize the chance of an approved claim. In addition, we will advise you on the type of physician or specialist you should consult for your medical forms. Insurers often deny applications because the qualifications of the person who filled out your form do not meet their standards. And this is particularly true for mental health leave applications related to anxiety and depression.

If you have already had your disability claim denied, then you will likely require our help. Your employment benefits are an enforceable part of your employment agreement. Let’s review your application to ensure your employer or representative at the insurance company has not withheld them without valid reasons.

WSIB

If you do not have access to STD benefits, consider WSIB benefits, instead. In January 2018, the Workplace Safety and Insurance Board upgraded its policy to grant WSIB benefits for chronic mental stress that arises out of, and because of your employment. Arguably, incidents of harassment and bullying at work that lead to a diagnosis of mental illness could meet the WSIB criteria. However, stress caused by the issuance of a Performance Improvement Plan (PIP), for example, may not count.

If you neither receive private health care coverage nor qualify for WSIB, you may be eligible for EI Sickness benefits that cover you with fifteen weeks of financial support if you cannot work due to a medical reason. Contact your local Service Canada office for details.

Mental Health Leave & Harassment

Mental health leave causes strain in many employment relationships. In our estimation, this is often the start of a very long battle. And in fact, the problem may get magnified after you report back to work. Whether you return with or without an accommodation plan from your doctor, your supervisor may start treating you like “damaged goods” and comparing you to the person who filled in for you during your absence. They may see an opportunity to clean up shop. This is when bullying, harassment and discrimination starts.

Management may try to sabotage you by purposely putting more work on you than you can handle. They may exclude you from meetings or gossip about you. All of this can culminate in a toxic work environment, which in extreme situations, causes the illness to return or get worse. All of this is completely against the law.

Contact us at the first signs of harassment. We will coach you through difficult situations to ensure the behaviour ceases. Alternatively, we will step in to negotiate a fair severance package, commensurate with your circumstances, so you can leave the job with a financial bridge and find better employment elsewhere. If your situation got so bad that you quit in frustration, then arrange a consultation with us promptly. We can evaluate whether you have grounds for a constructive dismissal lawsuit.

The Law Protects You

Fortunately, Canadian laws provide strong protections for employees experiencing mental health discrimination at work. Our courts have held employers liable for exemplary damages when they intentionally inflicted mental distress on employees.

With the case Saadati v. Moorhead, the Supreme Court of Canada advanced the law for mental injury claims much further in 2017. They ruled that claimants no longer require proof of a recognized psychiatric illness to claim damages for mental injury. Instead, they placed emphasis on symptoms and their effects, rather than on a mental health diagnosis. The Saadati decision did away with the need for expensive expert witnesses to advance a claim for mental injury. This was a welcome development for Canadian workers.

Reducing Incidents of Mental Health Leave

Employee mental health is an issue all workplaces should get a grasp on. It is the leading cause of absenteeism and reduced productivity. The best way to manage this is to prevent it from setting in, in the first place. Workplaces can ensure all employees are properly supported in their jobs; they should nip toxic workplace culture in the bud and positively discuss employee mental health, just like Madalyn Parker and her CEO did.

Canadian laws are evolving to reflect our understanding and appreciation of employee mental health. As experienced employment and disability benefits lawyers, we will continue to follow and report on these positive developments.


About the Authors:

Ian Hurley | Toronto Employment Lawyer

Ian Hurley is a partner at Lecker & Associates. If you’ve ever had your disability claim denied, he is the employment lawyer you want on your side.


Kim Sebag | Toronto Employment Lawyer

Kimberley Sebag is an employment lawyer at Lecker & Associates with a clear focus on defending the rights of Ontario employees.


Lecker & Associates are employment lawyers with 35+ years of experience helping employees of Ontario qualify for short-term disability claims. We have also represented employees with challenges that ensue with their employers. Contact us for a consultation about your situation. The initial assessment is free. 

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