As the majority of the workforce transitions back to in-office work, employees’ mental health in the workplace can no longer be ignored. Bram Lecker (“Mr. Lecker”), principal of Lecker & Associates, recently addressed this issue in an article, Disability claims involving employees suffering from mental illnesses are rising: lawyer, in the Canadian Lawyer. Specifically, he stated that his firm has “recently seen a 40-per-cent rise in employee-based illness cases. Of that 40 percent, three-quarters involve mental-health issues”. He further stated that “these challenges are causing workers – particularly younger workers – to quit”.
This is a problem for both employers and employees. Employers cannot simply run a business effectively with a drop in personnel, and people who quit their jobs will not be able to sustain a loss of income for too long, especially if their mental illness is preventing them from functioning.
Accordingly, employers need to address this issue. Mr. Lecker notes that “the good employers are dealing with it sensitively. The bad employers are basically looking at it like you’ve got the common cold. ‘Take a couple of days off and get back to work’.”
While the law requires that an employee take a sick leave for as long as is recommended by their physician, it is not necessarily a paid sick leave. However, some employers provide an employment benefit which includes a disability plan, i.e. short-term disability (“STD”) and long-term disability (“LTD”). However, where employers do not have a disability plan, employees may be eligible to receive employment insurance sick benefits for a period of up to fifteen (15) weeks. Anytime after that, without a disability plan, would be unpaid leave.
Where there is a disability plan offered by the employer, employees should not hesitate to make an application for STD/LTD benefits merely because their illness is psychological and not physiological, as Mr. Lecker points out that “there is no such thing as a disability policy which excludes mental health… It would be highly discriminative, and it’s contrary to the Insurance Act.” Mr. Lecker further points out that where employers deny time off and/or make payments under its disability plan, it may amount to a breach of contract.
The next part of an employee’s illness that employers need to bring their attention to is dealing with an employee’s return to work with accommodations, as this is just as important as providing an employee with medical time off.
In essence, employers must tread lightly when dealing with an employee’s return to work. First and foremost, an employee must be returned to the same or equal employment on the same terms and conditions as prior to the medical leave. Second, where an employee is returning with an accommodation letter from his or her physician, the employer must, pursuant to human rights laws, take reasonable steps to accommodate an employee, unless the employer could show that it would cause them serious hardship. However, Mr. Lecker stresses that “the only key is that accommodation is temporary.”
Where an employer is seeking further details about the accommodation in order to return the employee to a safe working environment, the employer may request an employee to have his or her physician complete a Functional Abilities form. It is important to note that the purpose of such information gathering is not to obtain the diagnosis of the medical condition, but rather to explore the limitations and restrictions of the employee.
If you have any doubts about how your employer has been handling your medically certified absence and/or your return to work with or without accommodations, contact the Toronto Employment Lawyers at Lecker & Associates team of experienced in order to have your situation assessed and provide legal advice to support you.