Wed 29th May 2019 by Sophie Purnell
In Shakespeare’s play Hamlet, Prince Hamlet utters the famous phrase “to be, or not to be, that is the question.” In this soliloquy, Prince Hamlet addresses the struggles of mental disability. Prince Hamlet contemplates the struggles of continuing to live but acknowledges that the alternative may be worse. Likewise, although not to the same scale as Prince Hamlet’s question, for some employees disclosing a mental disability to employers may prove to be painful but the alternative of not disclosing may be worse.
Considering May is mental health awareness month, it is fitting to discuss this topic in the workplace. There are many benefits for employers who promote mental health programs and awareness in the workplace like reducing absenteeism and improving productivity. While these efforts by employers are laudable, an employer’s reaction, and subsequent accommodations provided to an employee after disclosing a mental disability, is more telling of a company’s resources and the availability of accommodations.
The Perils of Disclosing
Given the stigma associated with mental health problems, disclosing a mental disability to your employer can often be difficult and uncomfortable. Questions such as:
- What if my employer thinks I’m not capable of career promoting opportunities?
- What if they terminate me?
- What if it leads to further exclusion or alienation from co-workers?
- What if my employer thinks I’m just making it up or does not understand the symptoms?
- What if they think “I’m too sensitive”?
The stigma is real and leads employees to not disclose mental health problems to their employers. This results in employees not receiving much needed assistance and support.
The Perils of Not Disclosing
On the flip side, not disclosing your mental health concerns may lead to not receiving proper accommodations. For example, if you end up being terminated for what is perceived to be poor work performance when in actuality it is, in part, related to your mental disability it may be more difficult to establish a human rights complaint and/or a civil claim because you did not previously disclose your disability.
So, Should You Disclose?
Disclosing a mental disability can often be a double-edged sword as described in the above paragraphs. However, if a mental disability is getting in the way of your performance at work, including increased absenteeism, difficulties concentrating, and irritability around co-workers, then disclosing your mental health problems may be beneficial. Before disclosing, consult with your physician and an employment lawyer about how much to disclose and your legal options. Consider also speaking on a confidential basis to your human resources department if you need options on what accommodations may be available in your workplace. In many cases, disclosing the nitty gritty details of your disability is unnecessary and a simple physician’s note asking for accommodations may suffice. Sometimes, medical documentation along with collaboration between the employee, the employer and the physician are required to provide proper accommodations.
It is also important to remember that the Alberta Human Rights Act prohibits an employer from discriminating against an employee because of “mental disability”. “Mental disability” is defined under the Alberta Human Rights Act as “any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder”. This can include anxiety, depression, ADHD, bipolar disorder, obsessive-compulsive disorder (OCD), addictions, etc. While employers have an obligation to accommodate employees with a mental disability, this does not always happen. As such, if you are uncertain if you should disclose your mental health concerns, what and how much to disclose, consult with an employment lawyer.
What if I do not have a mental disability but I’m struggling with personal matters?
Most of us will go through hard seasons in life requiring support from our employers. This can include events such as: the death of a family member or close friend, caring for a sick child or an aging parent, domestic violence, an unexpected surgery, divorce etc. While these hard times may not lead to a “mental disability” as defined under the Alberta Human Rights Act, you may be entitled to certain benefits under Alberta’s Employment Standards Code to assist you during such times. These benefits include Bereavement Leave, Personal and Family Responsibility Leave, Compassionate Care Leave, Critical Illness of Child Leave, Long-term Illness and Injury Leave, and Domestic Violence Leave. Additionally, you may be able to claim short-term disability under your company’s insurance plan. If you are uncertain about which options to use, consult with an employment lawyer.
I have not disclosed my mental disability and I’ve recently been terminated
While failure of an employee to provide information for disability-related accommodation may provide a defence to a human rights complaint, the duty of an employer to accommodate an employee is not engaged only after an employee provides a medical note or information. If you believe your mental disability played a factor in your termination, although you did not disclose the illness or provide medical documentation, consult with an employment lawyer about your options. In some cases, you may still be able to file a human rights complaint or claim wrongful dismissal.
I have disclosed my mental disability and I’m not receiving accommodations
Keep a paper trail of the incidents where your employer is denying accommodations, including dates and how the concerns were not addressed. You may be able to file a human rights complaint and/or claim constructive dismissal. In both cases, consult with an employment lawyer before making a claim.