Cognitive Disabilities & the Duty to Accommodate

Written on behalf of Peter McSherry

Human rights law requires an employer to accommodate an employee with a disability. It is very clear that disability includes a mental disability as well as physical.

Does this then raise the issue as to what exactly is such a disability? Generally speaking, most physical impediments are quite evident and are typically accompanied by a medical report which sets out the nature of the disability, time off that may be required and when the employee will be ready to return to active employment, as well as the nature of any work restrictions that may need accommodation.

Matters of the mind are not so simple. The case is clear cut when the employee provides a medical report similar to the above in the case of a physical issue, but often this is not the case to psychological or cognitive conditions.

Perception Counts

Although not directly an accommodation issue, human rights law has long recognized that actions taken because management believes that the employee suffers from a disability is actionable, even if there is no underlying disability.

Thus, an employer that terminates, or otherwise adversely treats an employee, because it thinks the person suffers from a cognitive disability can be held accountable.

When is Accommodation Necessary?

Accommodation requires that the employee demonstrate that they have a cognitive issue as a first step. This raises the issue of what exactly is considered a cognitive disability requiring accommodation.  Generally speaking, an employee will be required to show “significant distress and impairment”. A slight degree of worry or anxiety will not qualify as a cognitive disability.

Caselaw generally has determined that a medical diagnosis, while certainly preferred, may not be required. If a person experiences stress and anxiety to the point where they cannot report to work, a medical determination of what is causing this may not be available and legally not required. This is often made more complicated by the fact that the narrator of what is wrong is the person suffering from the very symptoms which are apparently preventing them from working.

It would always be advisable for the employee to take psychological counselling to support their desire for treatment. This will allow, at the very least, for an impartial observer’s view of the legitimacy of the symptoms and a statement of how this condition, whether labelled with a diagnosis or not, may be accommodated.

Accommodation is a Two-Way Street

This is a two-way street. The employee must provide all medical information available and also may be subject to a “neutral” medical examination from the employer’s appointed physician.

This is a difficult task for the employer as to avoid accommodating the disability, it must show “undue hardship”. If the employee is co-operative and displays real symptoms of mental distress, then the duty to accommodate will normally follow.

This generally means that the employer cannot treat the employee adversely because of the disability and also allow for a return to work on terms as required. This may include a gradual return to work or steps to avoid provocative work issues that may trigger the disability symptoms.

The failure to make a reasonable effort to accommodate may expose the company to dramatic claims by the affected employee.

Get Advice and Know Your Rights

Stay up to date and understand your legal rights. Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.