The Intersection of Performance and Psychological Disability

Jamie Burns, Hicks Morley Hamilton Stewart Storie LLP

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The intersection between performance issues and claims of disability can make performance management quite a complex process for employers.

When an employee claims to suffer from a psychological disability in the face of an investigation into the employee’s performance, one must consider whether the condition identified is in fact a “disability” for the purposes of the Ontario Human Rights Code (“Code”). Having one’s performance scrutinized naturally generates a level of stress and anxiety. Therefore, it is common for employees to claim they are suffering from stress once a performance issue has been identified. In such a situation, employees may even cease reporting to work as a result of the alleged stress they are experiencing.

A bare assertion that the employee is a person with a disability is not sufficient to establish a psychological disability. For example, workplace stress resulting from an employer investigating alleged performance problems, or from a problematic relationship with a supervisor, is not alone sufficient to constitute a disability for Code purposes. However, such an assertion does create an onus on an employer to make further inquiries to obtain information as to whether an employee has a disability requiring accommodation. Once the employer knows that the employee may have a psychological disability requiring accommodation, the employer should request medical information regarding:

• the nature of the illness;
• whether the disability is permanent or temporary, and the employee’s prognosis;
• the restrictions or limitations flowing from the disability;
• the basis for the medical conclusions; and
• the treatment of the disability, including medication (and possible side effects) which may impact on the employee’s ability to perform his or her job duties and interact with others.

This type of information is essential to both provide evidence of the employee’s disability and to assist the employer in meeting its duty to accommodate, if a disability is substantiated.

The fact that an employee has a disability does not eliminate the employer’s right to discipline that employee in appropriate circumstances. Once the employer has obtained sufficient medical documentation substantiating a psychological disability, it must consider whether the employee’s medical condition is the cause of the employee’s poor performance. If there is no causal link, the employer may discipline the employee for poor performance. However, there may be circumstances in which the employee’s misconduct is considered culpable, but the employee’s psychological disability is viewed by an adjudicator as a factor which mitigates the disciplinary penalty.

In the event the medical evidence substantiates a causal link between the disability and the employee’s performance issues, the employer must consider whether it can accommodate the employee (which may assist in improving performance) up to the point of undue hardship. In considering whether accommodating the employee would cause undue hardship, the following factors are generally considered by adjudicators: cost, outside sources of funding, safety, size of organization, interference with rights of other employees and employee morale. Employers must keep in mind that undue hardship is a difficult standard to meet. The employer must be able to show that it considered whether modifications could be made to the employee’s position, and if not, whether there is other work the employee can perform, either with or without modifications. The employer must be able to establish that it canvassed all work available in the workplace.

Only through such inquiry as noted above will the employer be able to determine whether the employee’s performance issues are causally related to a psychological disability and, thus, whether the employee’s poor performance is culpable or not. In any event, the employer must consider whether the disability will be viewed as a mitigating factor. This process is also necessary to determine what, if any, accommodations may be required to assist the employee in improving their performance.

While these principles are helpful in guiding the disability and accommodation process generally, every situation requires an individualized approach based on its own facts. If you are dealing with a novel or particularly sensitive situation, it may be helpful to speak with a Hicks Morley lawyer to ensure you are appropriately addressing the issue at hand.

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Jamie Burns is a lawyer at Hicks Morley who specializes in labour and employment matters facing municipalities. If you have any questions about this article or any other labour or employment matter, do not hesitate to contact Jamie Burns at 416-864-7019. She may also be reached at jamie-burns@hicksmorley.com.