Many workers suffer from significant stressors in their day-to-day lives. For some, stress can become such a serious issue that it hampers their ability to work. In circumstances like these, it is crucial to be aware of your legal entitlements. Under Ontario’s Employment Standards Act, an employee who has worked for 2 consecutive weeks is entitled to leave without pay because of personal sickness, injury, or medical emergency. However, this entitlement is quite narrow, providing only 3 days’ leave. Furthermore, employers may require evidence confirming why the sick days were taken. Such evidence is limited to the duration of the expected absence, the date the worker was seen by a health care professional, and whether the worker was examined in person by the person issuing the note. Additionally, workers must give their employer notice that they intend to take any sick days. Unfortunately, for workers suffering from stress, 3 days’ leave over the entire year may be insufficient to cover all their health concerns. Outside of the ESA, workers may be entitled to extra sick leave if an increase above the mandatory amount is provided in their employment contract. If your employment contract does not provide more sick days, yet you need to take more time off work, you may still be protected under Ontario’s Human Rights code.
Anti-Discrimination protections
Workers in Ontario have a right to a discrimination-free workplace, including discrimination relating to disability. If you have a stress-related disability, your employer has a duty to accommodate your disability. However, there may be significant difficulty in getting your stress-related disability acknowledged in the first place. In Windsor (City) v. Windsor Professional Firefighters Association, chronic stress was raised as a disability that prevented a worker from attending work. Despite the employer being aware of the worker’s “severe and incapacitating stress”, the arbitrator found that there was improper reporting of the developing situation and held that the chronic stress experienced did not amount to a mental disorder. Instead of being seen as a mental disorder, and therefore a disability, chronic stress was treated merely as a standard reality of everyday life for most workers.
On the other hand, when workers can successfully demonstrate that they suffer from a mental condition, like post-traumatic stress disorder, disability status has been acknowledged. In Health Sciences North v. Ontario Nurses’ Association, the worker struggled to return to work after a significant leave due to her condition. The arbitrator found the employer had discriminated against her because of her mental disabilities, including her PTSD. Workers who suffer from mental health disorders such as PTSD can be assured that their condition entitles them to protection under the OHRC. Workers cannot be discriminated against because of their disability. Instead, employers have a duty to accommodate workers under such circumstances, and failure to accommodate may be a breach of your human rights.
Another aspect of anti-discrimination protections for workers is the duty to accommodate. Employers have a duty to accommodate workers on certain protected grounds outlined in the OHRC, including disability. However, in British Columbia (Public Service Employee relations Commission) v BCGSEU (Meiorin), the Supreme Court acknowledged that discrimination can be permitted because of a bona fide occupational requirement (BFOR). A BFOR must be imposed honestly and in good faith and must be reasonably necessary to ensure the work is performed safely and efficiently without unreasonably burdening the workers to whom it applies. Nevertheless, both Meiorin and the OHRC indicate that a BFOR is unacceptable unless the group affected cannot be accommodated without undue hardship for the employer. Since the test is for undue hardship, if the employer suffers some hardship, it is entirely acceptable. Undue hardship covers things like the financial cost of accommodation and potential interference with the rights of other employees. In other words, an employer has an obligation to accommodate members of equity-seeking groups, including workers suffering from stress-related disabilities, unless such accommodation would be excessively expensive or get in the way of other workers’ rights.
If you suffer from stress-related conditions like PTSD, it is important to consider accessing disability leave and any disability benefits you may be entitled to under the Workplace Safety and Insurance Act. Certain workers, primarily first-responders, are also entitled to insurance benefits arising from the WSIA if they develop PTSD arising out of and during their employment.
Termination
Employers have a duty to accommodate workers for their disabilities and cannot discriminate against a worker because of their disability outside of a bona fide occupation requirement. If your employer terminates you because of your stress-related disability, like PTSD, this may constitute a wrongful dismissal. In Ontario, termination takes two forms: for-cause dismissal which alleges worker misconduct leading to a breach of the employment agreement, or without-cause dismissal which requires reasonable notice of pay-in-lieu thereof. If your employer attempts to terminate your employment, it may stem from discrimination because of your stress-related disability. Termination on these grounds would violate your human rights and breach the OHRC. In those circumstances, you may well have been wrongfully dismissed, despite being entitled to a discrimination-free workplace. If you have any questions or concerns, please feel free to contact us.