Authors: Stephanie McDonald and Baldeep Sodhi

According to Mental Health Research Canada’s Psychological Health and Safety in the Workplace October 2024 Update and Trauma and Stress in the Workplace Report:

• 24% of working Canadians report experiencing burnout ‘most of the time’ or ‘always’
• 23% of working Canadians believe their workplace is not psychologically safe
• 12% of working Canadians report experiencing high levels of anxiety
• 10% of working Canadians report experiencing high levels of depression
• 22% of respondents reported being exposed to trauma at work

These statistics are just the tip of the iceberg, and are not tailored to any specific industry. If I had to guess, I would bet that you or someone you know experiences poor mental health, which is either caused by the workplace, or exacerbated by the workplace.

Since mental health affects so many Canadians, understanding your rights with respect to mental health in the workplace is crucial for employees.

Are Employers missing the mark?

Although the law places the responsibility on the employers, in reality, many workplaces still fall short of meeting best practices, and even their bare minimum legal obligations. Mental health policies may exist on paper, but in practice, it’s something that’s still swept under the rug, even though it is central to workplace well-being. Employees are left to take their health into their own hands, sometimes silently and at a great personal cost. It shouldn’t be that way, but if you fall under those circumstances, here’s what you need to know.

The Occupational Health and Safety Act

In Ontario, the Occupational Health and Safety Act (OHSA) outlines employees’ rights to both physical and psychological safety at work.

Under the OHSA, employers are required to take every reasonable precaution to protect workers, including from workplace violence and harassment. Employers are obligated to instruct and supervise workers to protect their health by preparing written occupational health and safety policies, reviewing the policies at least once a year, and ensuring proper programs are in place to support a safe work environment.

The Human Rights Code

While the OHSA governs general workplace safety, the duty to accommodate and not to discriminate against workers’ mental health conditions falls under the Ontario Human Rights Code.

Employers must accommodate mental health conditions (which are considered a disability under the Code) to the point of undue hardship. When assessing what is considered undue hardship, courts and tribunals assess the cost of accommodation and any health and safety risks of the requested accommodation.

Employees have a responsibility to actively participate in the accommodation process by providing enough information to their employers to identify appropriate accommodations. I always recommend that employees make their accommodation requests in writing, clearly outlining the reasons for the request and including any supporting medical documentation, such as a note from a physician. Before making a formal request for a mental health accommodation, you should consult with a lawyer to better understand your rights.

Your Right to a Medical Leave of Absence

In Ontario, if you’ve been working with your employer for at least two consecutive weeks, you’re entitled to take up to three days of unpaid medical leave each year under the Employment Standards Act.

Beyond that, if you require more than 3 days off (and many employees experiencing mental health concerns would), you are entitled to take an extended medical leave of absence for a longer period of time. The employer is required to maintain your employment during this time, unless the employer can prove that it would amount to undue hardship to do so, or has evidence that there is no reasonable prospect of you returning to the workplace.

Part of my practice involves assisting employees with determining if they need a medical leave, assisting them in the process of requesting such a leave, helping them obtain EI Sickness benefits or insurance benefits from a private insurance policy. Please contact me if you would like legal support throughout this process.

Steps to Requesting a Medical Leave

1. Set up an appointment with your family physician to discuss the challenges you are experiencing at work.
2. Ask for your doctor’s support for taking a medical leave of absence.
3. Obtain a note from your doctor that explains in simple and broad terms that you will be off work for medical reasons for a period of time.
4. Deliver the medical note and a written notice for a medical leave to the appropriate party (usually HR or your manager).
5. Briefly discuss any transition items that require your attention prior to your departure, but make it clear that you are not available beyond a certain date for any transition matters. If there is urgency to your medical leave, or you are too unwell to manage the transition, you can skip this step and explain this in your notice to your employer regarding the medical leave.
6. The employer may request additional medical information. They are only entitled to the minimum amount of information required to assess your absence.
7. Ensure that you respond to inquiries from your employer while you are on leave regarding your leave and any housekeeping matters that may need your attention.

Conclusion

While employers are legally required to provide safe and healthy environments, not every workplace lives up to that responsibility. Taking care of your mental health doesn’t mean you’re being too difficult or overreacting, it means you’re being proactive and using the protections provided by the law. If you’re struggling with your mental health at work, remember that you have rights, you should put everything in writing, and before making any formal requests, it’s important to consult a lawyer. At Workplace Sage Legal, we’re here to help you navigate through these challenging times with expertise and support.