Episode 4: Addressing Employee Mental Health

Approximately 30%-40% of the cases Bram Lecker sees today involve harassment or a toxic work environment. Employees are in distress, and he has noticed a significant increase over the last decade.

In this podcast, Bram describes what constitutes a toxic workplace and several laws that prohibit it in the workplace. Unfortunately, constructive dismissal becomes an unfortunate byproduct of these circumstances if the matter is not addressed promptly.

Bram also offers insight into what occurs when individuals take time off for mental health reasons and attempt to access employer-sponsored short-term or long-term benefits. And finally, Bram addresses the extent of accommodation employers must provide when employees return from sick leave.

Transcript

Brian Goman: The Employee Rights Podcast is presented by Lecker and Associates employment lawyers representing Ontario workers for over 35 years. Today on the podcast will be speaking with Bram Lecker, principal of Lecker and Associates about employee mental health. I'm Brian Goman, and this is the Employee Rights Podcast. Okay, Bram. So, based on what you've seen in terms of cases coming through these doors, would you say that there is a crisis in terms of mental health in Ontario workplaces?

Bram Lecker: Well, I've been in practice for coming close to 34 years, and I would say in the last five years, maybe 10 years, whereas approximately 15% of our cases involved situations of mental distress and harassment, intimidation, what we refer to as toxic work environment. The cases now are at least 30, 40%. So I would say in the last 10 years, certainly in the last five years, there's a significant increase.

Brian Goman: And you mentioned a toxic workplace. How would you define a toxic workplace or toxic work environment?

Bram Lecker: Very graphically. When somebody comes to work, they dread the day before going to work. And on the way, very often, clients will tell us that they'll stop and they'll be physically sick before they come in as a result of the expectant harassment, yelling, screaming, intimidation, and name-calling that they receive from either their supervisors or their employers.

Brian Goman: What does the law require from employers to make the workplace less stressful for employees?

Bram Lecker: They're required to establish a safe work environment where the person doesn't feel the things I've just mentioned, such as they wouldn't have a hole in the middle of the factory floor or an open window in an office building. It has to be safe, something which would be reasonably foreseen if employers are not expected to have crystal balls, but if they see a situation in certain circumstances, the company is held to be liable. So it's quite a high standard in Canada anyway,

Brian Goman: In terms of legislation, what kind of protections exist and what governs that?

Bram Lecker: As I've said before in my other sessions, we have in Canada the very progressive regime of protection for employees. So there are two legislative regimes, one being the Occupational Health and Safety Act, the other one being the Ontario Human Rights Code. And as well, of course, we have our judge-made law, sometimes referred to as the common law, which governs aspects which we would colloquially refer to as constructed. The difference mainly between the Occupational Health and Safety Act and the Human Rights Code as it relates to toxic work environments and harassment intimidation work is that the Ontario Human Rights Code provides a one-stop shop and comprehensive location, shall we say, for addressing those concerns. And it also, of course, would result in civil liability damages and money judgments against the perpetrators, that being individual employees or the employers themselves. The Occupational Health and Safety Act is mainly monitored or enforced by the administration of labour itself.

Any infractions of the Occupational Health and Safety Act are addressed with penalties, fines, stop work orders, that sort of thing. There's no civil liability and therefore no money judgment, which would accrue to the individual employee. So most of the time, lawyers like myself will use a combination of the litigation process being the courts together with the provisions under the Ontario Human Rights Code in particular, there's a section which ensures that people are treated with dignity and self-respect, and that in recent years has been a very powerful tool and remedy that's been used on behalf of employees by the adjudicators.

Brian Goman: You mentioned constructive dismissal, we've talked about that a little bit, some of our other sessions. Can you talk about how that fits into this picture?

Bram Lecker: Well, just, I said there's sort of like a triad being the administrative penalty that's levy that doesn't accrue to the employee. Then there's the comprehensive system under the code. And then of course there's the old tried and true and very effective system of suing your employer as a result of constructive dismissal being that the employers created, once again, a toxic work environment of harassment, intimidation, and oppression such that you were unilaterally forced to leave the employment. I mean, you're just not given a choice. You can't work under those circumstances. So you leave and you say it's a constructed dismissal in that the employer is either let it go on or turn the other cheek or as engaged in what we call willful blindness and not protected you at work. So you have to leave and you can sue them as you would if you had been dismissed or terminated from your employment.

Brian Goman: What options are available for workers who want to take time off for mental health recovery?

Bram Lecker: Well, in our long mental health conditions, psychological are treated in exactly the same way as physiological ailments, no difference whatsoever. And the answer to that is it's initially based on the terms and conditions and customs of the business itself, it varies wildly from a week to two weeks. Beyond that, we then get into a variety of protections ranging from unemployment, insurance, sick leave, which goes for about 15 weeks to short-term disability to long-term disability based on your own occupation. In other words, if you're disabled to performing the duties of your own occupation, which lasts usually about two years to being prevented from working in any occupation as a result of your disability, and that lasts to age 65. So it's basically a gradient of protections for the employee.

Brian Goman: And we'll talk a little bit more about long-term benefits in a minute. I want to talk a little bit about the process of applying for short-term disability leave. Can you talk a little bit about that is an easy process for an employee?

Bram Lecker: Strange thing about it that most short-term plans and long-term plans, the language in them and the protections are pretty much the same. And for short-term, it's quite simple. You have to be prevented from performing the ordinary duties of your occupation less than 60%. So if you can't perform 60% of those ordinary duties, you usually are entitled or able under the plans to go on to short-term disability. Most of the short-term disability programs that are provided are provided directly by the employer. The intervention or participation by insurance companies is usually the case is really based on, we call administrative services only. So rather than being the bad guy, bank A or insurance companies C or a manufacturing company D will buy these plans. They're the ones who actually fund them and actually pay out the benefits. But it's an insurance company or health provider that monitors supervises and ultimately makes a decision as to whether an individual is accepted under the plan itself.

Brian Goman: Right. So you're applying essentially to an outside company, and I would, maybe I'm being cynical here, but they're motivated to dismiss or deny claims. Would that be right?

Bram Lecker: Well, you're probably right. It's a little bit more complicated than that, but it's even actually worse than that because what happens is the insurance company will provide the employer with a package for short-term and for long-term disability, the short-term is basically monitoring the employer's own money. The long-term plan is basically monitoring their own money because after short term, if a person is still ill or disabled, they go on to long term. So the So-called Monitor supervisor is very motivated to be very tough and judgmental and circumspect as to whether or not they're going to permit or allow somebody to have benefits under the plan, under the short-term plan because they know that after six months, they're going to get hit with the bill. So that's the reason why it becomes very problematic. In addition, it's just the old story. If an employer's hiring a company to monitor their short-term disability system, they expect them to be tough and judgmental and engage in deniability just like any other insurance plan. And it results in a lot of very difficult complications and hardships to the employee in a lot of cases.

Brian Goman: Let's talk a little bit about workplace accommodation. How far should employers go to accommodate ill employees? Are those returning to work after sick leave?

Bram Lecker: Well, this involves a situation just to parse that a little bit, where somebody goes through short-term disability and just about the six month mark, they're determined by their doctor to be on an upward or rehabilitative curve. They're getting better and the doctors encourage them to go back to work. The difficulties arise when the doctors think it's a good idea, but they realize that the person, shall we say, is not firing on all their cylinders in terms of their energy and focus and ability to go back to work either through pain management or the effects of medication. So they're not really able to go back and the employer is faced with the situation of having to take an individual back who's not coming back full time and sometimes is not capable of fulfilling the same roles that they had pre-injury or pre illness. So that's when we get into a whole area of accommodation.

And accommodation simply means the employee's physician's ability to restrict the hours and extent of the work that the person is going to engage in upon return from a short-term disability or long-term disability for that matter. So the question is, how much should the employer accommodate or restrict that person's work hours and actual job? The law answers by saying to a great degree, to a great extent because in Canada, the accommodation has to be seen as temporary. So that's one condition. But the second and major requirement by employers are that unless it's going to show a serious burden or hardship on the business interests of the employer, that person has to be accommodated in accordance with what their doctor is required. And the only exclusions in the law, in the cases to that are issues of safety and security. For example, if a person is a truck driver or a famous case being an airline pilot and the doctor saying, well, the person has to be accommodated, and the employers shot back and said, well, yeah, but you can't be half a pilot or you can't be half a truck driver, you've got to be fully capable of in your job.

Those are really the only two exclusions. Other than that, in Canada, the employer has a very serious and heavy burden to show that any accommodation will result in serious hardship.

Brian Goman: Thanks very much.

Bram Lecker: Thank you.

Brian Goman: The Employee Rights Podcast is presented by Lecker and Associates upholds values of goodwill, generosity, and honesty. So should your employer not follow the same standards of Fair Play, our team believes they should. We are Leer and Associates. We have successfully represented Ontario workers for over 35 years. Visit our website, Leckers Law for more information. Thank you for listening.