HR challenges: COVID-19 and mental health in the workplace By McKercher LLP lawyers, Kit McGuinness and Michael A. MacDonald

The global pandemic has changed our lives in many ways. Many of us have had to adapt to new ways we work, attend school, and keep our families safe.

Some of these changes have been positive. However, many have not. The pandemic has caused economic and social damage to many, and not all damage is readily visible. One cost that could be overlooked would be the impact the pandemic has had on your workforce’s mental health.

Reports indicate that the mental health of Canadians has steadily declined over the pandemic.¹ The Workers’ Compensation Board for Saskatchewan has reported a marked increase in claims for psychological injury in 2020.² It is safe to say that, as the pandemic dragged on, Canadians’ mental health continued getting worse.³

Mental health issues can inflict massive organizational costs. The following statistics provide some illustration:

• Approximately 30 per cent of disability claims in Canada are attributed to mental health; and

• The fastest-growing category of disability claims in terms of cost to Canadian employers is from depression.⁴

Overall, these trends suggest keeping a close eye on your returning workforce and proactively addressing any mental health problems your workers may be experiencing.

Resources are becoming widely available

Raising mental health awareness in the resource mining industry has been notoriously difficult.

A 2016 study found that workers in the mining sector experienced short-term depression at approximately five times higher than the national average. In Canada, rates of generalized depression were found to be much higher among agriculture, mining, and construction workers specifically.⁵

As one article on the resource company NORCAT points out, “miners aren’t typically a group one would expect to be receptive to discussing mental health issues in a training session.” For this reason, a five-week program for new miners was put in place by NORCAT. NORCAT’s management has admitted that prior to the program being implemented, it was easier to “sweep mental health issues under the rug or ignore symptoms when they appeared.”⁶

Fortunately, several new programs are available to assist with maintaining strong mental health. WorkSafe Saskatchewan, for example, has entered into a number of partnerships to deliver educational courses such as:

• Mental Health Communication Strategies;

• Enhancing Workplace Resiliency; and

• Managing Psychological Health Issues at Work.⁷

In addition, the Saskatchewan Human Rights Commission has prepared a guide for employers to address mental health within the specific context of COVID-19.⁸ The guide offers useful suggestions for recognizing and communicating about mental health disabilities with employees.

However, even if your human resources department is proactive, mental health issues can still arise and create personnel problems. Below we review several common contexts in which such issues can arise.

Human rights

Human rights legislation protects everyone from discrimination and harassment based on any of the prescribed prohibited grounds, including mental disorders, which are recognized as a form of disability. This legislation prohibits employers from terminating employees, denying promotions, or refusing to employ applicants on the basis of a mental health disability.

Employers have a duty to accommodate such individuals who experience mental health challenges, up to the point of “undue hardship”. What qualifies as “undue hardship” is very fact-dependent, meaning the extent of accommodation-owed changes with the circumstances.

Even before a mental health challenge is discovered or brought forward by an employee, employers may have a duty to inquire. If an employer has reason to believe an employee may be experiencing mental health challenges, the employer should inquire confidentially with the employee. If the circumstances require, reasonable accommodations may be owed to enable that employee to effectively perform work, while at all times safeguarding their personal health information.

Occupational Health & Safety and Workers’ Compensation

Most Canadian jurisdictions have laws requiring employers to provide a safe workplace. This includes providing employees with a workplace free from violence and harassment. In turn, this obligation can bear on matters of occupational health and safety and workers’ compensation.

A recent decision by the British Columbia Workers’ Compensation Appeal Tribunal⁹ serves as an example. In January of 2022, the B.C Tribunal allowed the appeal of a construction worker who claimed her employment caused her to suffer a mental disorder rendering her incapable of work.

The worker had been previously been diagnosed with a mixed anxiety and depressed mood disorder, which had been improving with prescribed medication. However, that stopped when the worker had a verbal altercation with a supervisor. According to the worker, she had been subject to a pattern of bullying, including being vindictively reassigned from painting duties and being berated for watching television while at work. According to the employer, the worker had been caught watching television instead of working, at which point the worker left, indicating she would not return. The employer interpreted her unauthorized departure from work as a resignation.

The B.C. Tribunal ultimately sided with the worker, accepting her mental disorder was caused by work-related stressors and that she was entitled to workers’ compensation benefits as a result.

While this case is specific to the legislative provisions of British Columbia, such a scenario still ought to be “top of mind” for human resources and management personnel. Mental health in the context of work continues to grow in prominence. As our economy and our people recover from the effects of the pandemic, it is foreseeable that such topics will continue to grow in prominence.

McKercher LLP’s labour and employment practice group would be pleased to assist with any related inquiry you might have regarding upholding these obligations to your workforce with respect to mental health issues.