From encouraging open discussions around mental health in the workplace to reintegrating workers once they return from disability leave, a lot of information is available on how to support employees. But what are employers’ responsibilities before they even hire someone?

“Certainly, mental-health conditions can be a concern for an employer if it impacts on the ability of an employee to do the essential duties of the job, with or without accommodation,” says Stephen Bird, a partner at employment law firm Bird Richard in Ottawa. But, he adds, employers can’t dismiss candidates just because they have a psychiatric disability.

Read: How to create a culture that welcomes employees back from disability leave

So a candidate’s need to start work at 10 a.m. due to medication side-effects or take Fridays off because of regular medical appointments, for example, isn’t a sufficient reason not to hire the person. If someone could do the job in four 10-hour workdays without significantly affecting operations, the employer would have to accommodate.

But while many accommodations for psychiatric disabilities cost little, candidates may not disclose them because they fear doing so would dissuade potential employers from hiring them, says Nitika Rewari, manager of workplace mental health, research, evaluation and knowledge translation at the Mental Health Commission of Canada.

Query carefully

If a candidate doesn’t disclose a disability, employers can’t ask, Bird notes. In 2001, ADGA Group Consultants Inc. dismissed an employee, Paul Lane, eight days after he started work and the day after he disclosed that he suffered from bipolar disorder. Lane complained to the Human Rights Tribunal of Ontario, which eventually awarded him $80,000 in damages and lost wages. As part of its defence, ADGA argued that on his application form, Lane stated he’d only taken five sick days in the previous 12 months, although he’d actually been on sick leave for three weeks due to his illness.

Read: WSIB, Ontario sued over treatment of chronic mental stress claims

It’s discriminatory to ask how many sick days a candidate has taken, since it effectively requires the person to disclose a disability, says Bird, who represented ADGA. But employers can extend job offers with conditions, such as requiring candidates to be able to lift a certain amount or commit to regular, in-person attendance.

“So, if attendance is essential to the role, an employer could ask, ‘Is there any reason to believe you might not be able to maintain regular and reliable attendance?’” says Bird, warning even that wording could be subject to a challenge.

If an employer interviews a candidate with a mental illness and, for unrelated reasons, hires someone else who happens to not have a disability, it must be able to prove it based its decision on legitimate grounds. “You’d have to have some criteria as to say why the person was a better fit,” says Bird. “And if the answer to that is, ‘Well, I don’t think [current employees would] react well to a person who presented with a disability,’ that’s going to be a losing case.”

Encouraging employers

Each year, 60 people with histories of mental illness or addiction begin studying at George Brown College’s augmented education program in Toronto. They can train as either an assistant cook or a construction worker — both industries that lend themselves well to part-time work and non-traditional hours — and, as part of the two-semester program, the students must complete a co-op placement.

Read: Getting to know staff ‘one of the biggest things’ for addressing mental health

“We lead with the skill sets the students have learned in the program,” says Tony Priolo, chair of the school of work and college preparation at George Brown. “As soon as we start talking about the actual training they do, [employers] realize it’s much more standard training.”

Priolo stresses the college doesn’t seek pity jobs for the students. “We’re promoting the skills that they’ve developed and then we’re trying to fit students in an environment where they’ll be successful,” he says. “For example, if we see that someone’s got really good chopping skills and knife skills . . . but they’re a little less comfortable on the stove, firing things up, we would try and establish a relationship with the employer that this person would be really good in this role.”

Catherine Money, recruitment manager at the Centre for Addiction and Mental Health in Toronto, provides training sessions for employers involved with the George Brown program. “We talk about what’s mental health, what does it mean in the workplace. And as HR professionals, we talk a lot about accommodation, how can you support someone, and it’s not this big onerous task you think it might be,” she says, noting the workshops allay most employers’ concerns.

Read: What resources can employers use to assess employee well-being?

Ranjan Seneviratne, executive chef at Pinnacle Caterers in Toronto, has been working with George Brown students in the augmented education program for more than a decade. “It was not a concern at all for me if somebody is healthy,” he says, adding he’s happy to accommodate alternative schedules and has offered full-time positions to roughly half of the students who come through his kitchen.

“Whoever comes here, I consider everybody the same.”

Sara Tatelman is a former associate editor at Benefits Canada.

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Copyright © 2018 Transcontinental Media G.P. This article first appeared in Benefits Canada.

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