In mid-June, the Ontario Human Rights Commission released a new policy entitled “The Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions” (the “Disability Policy”), which builds on the Commission’s prior Policy and Guidelines on Disability and the Duty to Accommodate.
The Disability Policy covers some of the following areas: recognizing mental health disabilities and addictions, establishing discrimination, forms of discrimination, reprisal, the duty to accommodate, undue hardship, and preventing and responding to discrimination (including the development of policies, education and training). Although the Disability Policy covers protection from discrimination in the course of employment, it also applies to protection from discrimination in relation to goods, services, accommodation and housing.
Particularly important for employers to note is the Commission’s statement that when employees request accommodation due to disability, the employer is not generally to “second guess” the health status of an employee. That presumption can be overruled in a situation where there is a legitimate reason to question the employee; however the general rule is for the employer to take the request in good faith without seeking additional medical documentation. In the words of the Commission, “Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the accommodation provider enough information to make the accommodation”.
Similarly, an organization must not ask for more confidential medical information than necessary because it doubts the person’s disclosure of his/her disability based on its own impressionistic view of what a mental health disability or addiction disability should “look like”.
As also stated in the Disability Policy, “In the rare case where an accommodation provider can show that it legitimately needs more information about the person’s disability to make the accommodation, it could ask for the nature of the person’s illness, condition, or disability, as opposed to a medical diagnosis”.
While the Disability Policy does not set out new law, it is a helpful summary of the current state of the law with respect to discrimination due to disability and the duty to accommodate, and it should be reviewed by employers dealing with mental health disabilities (including addictions) in the workplace. One note of caution, however: this is an evolving area of law, and the Disability Policy, like all policies of the Commission, do not have the force of law; they merely set out the Commission’s interpretation of the law as of the date the Policy is posted.
The Disability Policy can be found at the following link: http://www.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf.
