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Mental health dilemma: What employees need to disclose

Authorities: Germanwings co-pilot hid illness from employer

If you have a health condition—whether it’s physical or mental—are you obligated to tell your boss? And is your employer ever required to know about your medical issues?

The questions raise all sorts of issues, touching on everything from employment law to human rights. And while the answers are not black-and-white, there are some generalities when it comes to the need to divulge illness or disability in the workplace.

For starters, your medical information is private.

“The privacy of someone’s medical records is deeply enshrined in all of our legal obligations,” says Fred Wynne, a lawyer at Vancouver’s Hamilton Howell Bain and Gould Employment Lawyers. “Disclosure has got to come from the employee; it’s got to be authorized.”

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However, Wynne says that employees often choose to divulge their medical status to their employer because they’re aware that there are certain benefits from doing so, such as protection from discrimination under human rights laws.

“In my experience, most employees will not hide their illness; in fact, they’re usually willing to put it out there because there are protections in place, such the Human Rights code in B.C.,” he says. (Provincial and territorial human rights laws vary.) “Once an employer becomes aware that an employee has a medical condition, it’s potentially a disability under Human Rights legislation.”

The B.C. Human Rights Code, for example, makes it illegal for employers to fire, lay off, or demote a person because of a disability, unless he can no longer perform the essential parts of the job. A disability can be physical or mental, visible or invisible, temporary or permanent. Examples include mental illnesses, developmental delays, learning disabilities, drug or alcohol addiction, HIV/AIDS, and sensory impairments (such as blindness).

Wynne notes, however, that some jobs and industries have stricter standards and more onerous reporting conditions related to employees’ health than others; air-traffic controllers, for instance, must be medically fit for work and go through regular exams to verify so.

Paul McLean, employment lawyer at Vancouver’s Mathews, Dinsdale & Clark LLP, notes that, broadly speaking, employees have an obligation to disclose a medical condition to their employer “if it has the ability to impair or impact their employment”.

There are also times when employers have a right or a responsibility to inquire about an employee’s health-whether the condition is a physical or mental illnesses.

“A common question from employers is ‘What and when can we know?,” McLean says. “In the context of mental-health issues, if the employee exhibits odd or disturbing behaviour, such as outbursts in the workplace, or if there’s an ongoing history of absenteeism or performance concerns which aren’t readily explained by the employee, then an employer has a right and an obligation to ask for medical information.”

Although stigma still exists, more and more workplaces have programs—and a philosophy—in place to help workers address mental illness.

“There’s been much more sensitivity to it in last five to 10 years from both a human rights perspective and a workplace safety perspective,” McLean says.

Vancouver lawyer Gabriel Somjen, senior counsel with Borden Ladner Gervais’s labour and employment group, says that workers and employers alike are responsible for a safe workplace.

“Information about an employee’s health, generally speaking, is private and not the employer’s concern, but when a health condition affects their ability to work properly or safely, then it is the employer’s concern,” he says.

“There is a dual obligation under legislation, whether federal or provincial, for employers to make sure that the workplace is safe, and that means safe for that employee and also for other employees,” Somjen says. “So if there’s a health issue that would restrict an employee from working safely, then there is an obligation for the employer to deal with that issue and also an obligation for the employee to not work in a manner or in a situation that’s unsafe.”

Let’s say someone who drives a bus or a train needs to take medication that makes them drowsy, for example. That person needs to tell his employer, who in turn needs to accommodate him, possibly with modified duties or other alternatives. Somjen notes too that many employers provide health-care plans, employee-assistance programs, and other benefits that support workers when they’re not able to work for a legitimate reason.

“The employer may need to reassign the employee or put them on sick leave, but it’s not appropriate for an employee who is knowingly incapacitated to just continue working without advising their employer and without giving the employer an opportunity to deal with it,” he says. “To be clear, the employee doesn’t get fired for that; there has to be some kind of accommodation for them.”

Somjen notes, however, that it’s not uncommon for people to feel nervous or scared about telling their employer something is wrong. That’s why he suggests employers have comprehensive, proactive policies in place that recognize and address situations where employees’ health may be affecting their ability to work safely.

“There’s an obvious issue with employees that are afraid because they think they might lose their job or might not be able to do the type of work they want [if they disclose health conditions],” he says. “Sometimes employees are afraid to disclose because they’re afraid of the consequences, especially with mental illness. Mental illness is a difficult one, because it tends to have some stigma attached to it.

“There have been lots of attempts to remove or reduce stigma but the fact is people often perceive mental illness as different from physical illness,” he adds. “If you’re dealing with addictions and mental illness, which often go together, those can be hard things for employees to talk about. The real key here is to have good policies where an employer makes it not only mandatory for an employee to disclose a type of disability that’s going to make them unsafe at work but to also provide an environment where the employee feels safe in doing that. Those two things go hand in hand.”