Supporting Members with Mental Health Illnesses during Accommodations and Return to

Work

There are two common ways of looking at what disability is:

• One way is to see a disability as a medical condition that a person has

• A newer way of looking at disability is that it is not something a person has, but rather a problem that occurs when a person’s environment is not designed to suit their abilities

“Canadian Human Rights Commission’s Policy and Procedures on the Accommodation of Mental Illness” online: The Canadian Human Rights Commission <http://www.chrc-ccdp.ca/pdf/policy_mental_illness_en.pdf

Accommodating Mental Illness

• The “Duty to Accommodate” is a legal right, under theHuman Rights Code

• If a person living with a mental health illness has alimitation that prevents them from performing essentialduties of their job, they have the legal right toaccommodation

• Furthermore, the Employer must ensure that theemployee with mental illness is free from harassmentand decimation

Accommodating Members with Mental Health Illnesses

• Each accommodation is case specific

• Mental illnesses must be accommodated in the workplacelike any other disability

Duty to Accommodate

The Duty to Accommodate arises when:• The employer is told by the member that he/she has a

disability and requires an accommodation• The employer “ reasonably ought to be aware” that the

member is ill even though the member him/herself is unable to recognize that he/she is experiencing a mental health disability. The employer in this case has a “duty to inquire”

(HRTO) in Krieger v Toronto Police Services Board

Duty to Accommodate

Finding an appropriate accommodation is a task shared jointly by:

• the Board• OECTA• the member

All parties are required to work reasonably and cooperatively in the process

Duty of the Employer

• Create an atmosphere in which employees are comfortable asking for accommodation (either formally or informally)

• Believe that the request is made in good faith• Explore all possible accommodations• Respect confidentiality• Respond in a timely manner• Require the employee to provide only that

information which is necessary to develop an appropriate accommodation

http://www.mentalhealthworks.ca/

Duty of the Employer (cont.)

• Pay the costs related to accommodation• Assist employees with disabilities prior to

their disability leading to a performance issue

• Ensure that managers are aware of their obligation to prevent an employee from being harassed in the workplace because of their disability

http://www.mentalhealthworks.ca/

Undue Hardship“the employer does not have a duty to change working conditions in

a fundamental way, but does have a duty, if it can do so without

undue hardship, to arrange the employee’s workplace or duties to

enable the employee to do his or her work”- Hydro Quebec [2008] S.C.J. No. 44 (QL)

If the Board is claiming Undue Hardship speak to your Bargaining and Contract Services Liaison to determine whether a grievance should be filed.

Duty of the Union

• Advocate for the member• Facilitate the accommodation and return

to work process• Balance competing needs of members• Provide creative accommodation

solutions

Duty of the Union

• In these situations, “Duty of Fair representation” means applying an “extreme” duty of care

• Not the same as everyone else• Duty to inquire

Duty of the Union (cont.)

Who needs to know what, and when?

• Permission to disclose information• Information will be shared on a need to

know basis• Communicating with family members• Privacy and Confidentiality

Duty of the Union (cont.)

Refusal to disclose information:

• Probe as to why?• Document

Duty of the Employee

• Request the need for an accommodation• Provide supporting documentation• Be cooperative• Communicate on-going needs or changes if

required

http://www.mentalhealthworks.ca/

Medical Documentation

• Nature of Illness NOTDiagnosis

• Limitations and Restrictions

Medical Documentation (cont.)

• Employer Request for Medical• Duty to cooperate (HRTO 2013 Baber v York Region DSB)

• Independent Medical Exams

If the Board is requesting an IME speak to your Bargaining and Contract Services Liaison to determine whether a grievance should be filed.

Principles of Accommodation

• The accommodation must respect the dignity of the individual

• Information about an accommodation should be kept confidential

• Accommodation must also be consistent with the overarching goals of full integration, rather than segregation, except where requested by the individual

http://www.mentalhealthworks.ca/what-is-a-reasonable-accommodation/

Preparing for an Accommodation MeetingSince accommodations are unique to the situation and can be simple or complex these are questions to consider:

1. What limitations the is member experiencing?

2. How do these limitations affect the member and the member’s job performance?

3. What specific job tasks are problematic as a result of these limitations?

4. What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?

5. Has the member with a disability been consulted regarding possible accommodations?

6. Do the administrators and other employees need training regarding disabilities?

An Excellent Resource to Create an Accommodation Template

https://www.workplacestrategiesformentalhealth.com/pdf/Supporting_Employee_Success_Booklet_Sep2016.pdf

Types of Accommodations

Informal With the Approval of the Principal

• Using Planning Time to attend Doctorappointments

• Change classroom location

• Reschedule supervision duties

Formal With the Approval of HR

• Timetable Adjustments to attend appointments

• Changes to workload or schools or assignments

Functional Accommodations(Addresses the member’s functional ability to do the job)

Sample Accommodations:• Changes in timetables• Improved lighting• Increased breaks (reduced yard duties or on-calls)• Specific time or days off for medical appointments.Other Suggestions?

Difficulty with organization, staying on task, finishing paperwork, managing time.Sample Accommodations:• Assign permanent classroom instead of having to change rooms• Create detailed lesson plans and outlines• Consider limiting number of students in class if feasible• Divide large assignments into smaller tasks and steps• Consider providing in-service training on time management

Other Suggestions?

Functional Accommodations(Addresses the member’s functional ability to do the job)

Sample Accommodations:• Change how feedback is provided by the

Administrator.• Anticipate concerns before they arise.• Avoid assigning high needs students and/or parents.• Provide or increase support for the member in

situations that are potentially confrontational.• Allow the option to not attend Staff meetings.Other Suggestions?

Relational Accommodations(Focus on addressing issues associated with interacting with the variety of people with whom teachers have contact)

Cognitive Accommodations(Cognitive impairment refers to disturbances in brain functions such as memory loss, problems with orientation, distractibility, perception problems, and difficulty thinking logically.) Difficulty with concentration:Sample Accommodations:• Increase natural lighting or provide full-

spectrum lighting• Divide large assignments into smaller tasks and

steps• Restructure job to include only essential

functionsOther Suggestions?

Memory deficits:Sample Accommodations• Allow member to record meetings• Provide printed minutes of each meeting• Provide written as well as verbal instructions• Allow additional training time for new programs and initiatives• Provide reminders of important deadlines via e-mails, memos, and

weekly supervisionOther Suggestions?

Cognitive Accommodations(Cognitive impairment refers to disturbances in brain functions such as memory loss, problems with orientation, distractibility, perception problems, and difficulty thinking logically.)

Emotional Accommodations(Difficulty handling stress, emotions, and change)

Sample Accommodations:• Provide administrative and coworker support with open

communication• Allow time off for counseling and stress management support

groups• Limit number of subjects to be taught (e.g., specialize in one or two

subjects)• Consider limiting number of students in class if feasible• Allow additional time and training to learn new responsibilities• Obtain clear expectations of responsibilities and the consequences

of not meeting themOther Suggestions?

“Reasonable” Accommodation”

“…cannot expect a perfect solution. If a proposal for accommodation that is reasonable in all the circumstances is refused by the employee, the employer’s duty to accommodate is discharged”

Central Okanagan School District v. Renaud (1992), Supreme Court of Canada

Accommodations are NOT Special Treatments

• DO NOT Share Medical Information • Address members who are gossiping or

revealing medical information • Remind members of the Policy against

Discrimination and Harassment in the Workplace

Privacy and Confidentiality

Ask the member what can be disclosed to the staff

Privacy and Confidentiality

What do you Say?Ellen has told you she has bipolar disorder, and needs to travel into the next town every Tuesday and Friday afternoon to meet with her psychotherapist. You’ve agreed that she’ll work until 3 pm on those afternoons, and use her planning time to travel to her appointments.. Two other members approach you about “going home early;” they expect “equal treatment” and want the opportunity to leave early or come in later, as well when they have planning time.Again, make sure you and Ellen have agreed on what she wants to tell co-workers. • If Ellen is not willing to discuss her condition, you might say:

– Ellen has appointments during school hours each week that she can’t schedule for evenings or weekends, so we’ve set up a work schedule that lets her use her planning time to leave early.

• If Ellen is willing to discuss her condition, you might say:– Ellen has a common condition called bipolar disorder, and she gets treatment during school hours, so we

have worked it out that she uses her planning time to get to her appointments.– She’s very open to talking about bipolar disorder; you could ask her about it if you want to know more.

• If another employee is needed to fill in for Ellen- a switch in planning time-, for example—the accommodation would require the administrator to juggle the schedules of other members which may interfere with their own planning time. In those cases, you should discuss how this may affect other members and address their needs or concerns.

Case Study #1:RTW AccommodationA special education teacher with agoraphobia (is a type of anxiety disorder in which you fear and avoid places or situations that might cause you to panic and make you feel trapped, helpless or embarrassed) had been off on leave for a school year. With her psychiatrist’s help, she determined that she could return to work if the school was within a five km radius of her home – the distance she and her doctor considered safe for her to travel. There were actually six schools within that area. She asked for an accommodation of being placed in one of those particular schools.

• Would this type of an accommodation be informal or formal?• Would this type of accommodation be considered: Functional, Cognitive,

Relational, or Emotional• As a Unit Officer how would you prepare for a RTW meeting?• What suggestions can be made for a suitable accommodation?• What barriers might the member face?

Is the Employer Required to Find Her Another Position?Only after efforts to accommodate in the original position have been unsuccessful.

Is the Employer Obligated to Displace Another Employee From Their Position?In unionized workplaces it is rare, due to potential interference with and impact on collective agreement rights.

In rare circumstances, an accommodation may mean a change to a different Bargaining Unit.

Case Study #2:Accommodation while at WorkA teacher had been diagnosed with both attention deficit disorder and obsessive compulsive disorder. She had great difficulty getting to work on time. She had asked her Principal for an accommodation to move her planning time to the first period of the day so that on days that she couldn’t get to school on time, she would not be getting to her classes late. The Principal denied the accommodation. The member has now called OECTA for help.

• What limitations is the member experiencing?• How do these limitations affect the member and the member’s job performance?• What specific job tasks are problematic as a result of these limitations?• Are there possible strategies the member can use to avoid needing the change in planning

time? If not;• What medical documentation might the member need to facilitate the accommodation?• What accommodations are available to reduce or eliminate these problems? • What barriers might the member face?

Case Study #3RTW AccommodationJoan has a history of mental health issues including depression and anxiety. She went off work and is now ready to return. Her Doctor suggests that she should RTW in a non-teaching positon.

Joan contacts OECTA and asks if she can return to an English as a second language assignment for which is qualified.

• What limitations is the member experiencing?• How do these limitations affect the member and the member’s job

performance?• What specific job tasks are problematic as a result of these limitations?• Are there possible strategies the member can use to avoid needing the

change in assignment? If not;• What medical documentation might the member need to facilitate the

accommodation?• What accommodations are available to reduce or eliminate these problems? • What barriers might the member face

Is the Employer Required to Modify a Position?• Duty to accommodate more extensive than simply

comparing the employee’s qualifications to the requirements of existing positions

• Need to focus on the duties still able to perform and analyze their ability to perform other functions

• If a function is necessary, then look at altering methods to enable the member to fulfill the job

Is the Employer Required to Assign Unproductive, Unnecessary Work?• Where an employer can demonstrate that

the employee will only be able to perform work of no real value, a refusal to accommodate will not be discriminatory

• Not required to create a new job that does not add value to the employer’s business

Case Study #4RTW and ColleaguesJohn's past performance records indicate that he has been kind, encouraging and good natured with the students. Lately, however, he has been observed acting in an aggressive and frustrated manner, including raising his voice and tossing books onto the floor. The OECTA rep., noticing the change in behaviour, speaks to John and asks if everything is all right. The Rep notes that John appeared embarrassed and said it would not happen again. Immediately after this discussion, he went off work with a note from his doctor.John is ready to return to work, but staff and colleagues have voiced concerns about his stability. The OECTA Rep. calls the Unit President and advises that the Staff is talking about John’s return and asks for advice.

As the Unit President what might you say and do?As the OECTA Rep. what do you say and do?

How long must an Employer Accommodate?

• There is no time limit

• Duty is ongoing

• Accommodations must be offered until undue hardship or a lack of medical to substantiate the need

• Since people with mental health illnesses face many stigmas and stereotypes teachers are often hesitant to admit that they have a mental health illness

• Therefore, it may be useful to have an accommodation policy that addresses mental health illness

• Such a policy should be a joint effort between the Board and the Local Unit

Final Thought:Accommodating Members with Mental Health Illnesses