Failing to accommodate an employee’s mental health needs isn’t just bad for morale, it can lead to a complaint before the Human Rights Tribunal. 

Mental health issues are common, and under B.C.’s Human Rights Code, you have a legal duty to accommodate them, as you would a physical injury. 

In this post, we’ll break down the requirements of the duty to accommodate in plain language, outline the practical steps you can take, and share examples of accommodations that work in real workplaces. 

Human Rights Code and the Duty to Accommodate Mental Health

The duty to accommodate isn’t a vague suggestion, it’s a legal requirement in. Section 13 of B.C.’s Human Rights Code prohibits discrimination in employment based on mental or physical disability. Mental health is equally protected under the Code and as such, should be treated with the same seriousness as a physical disability. 

According to the BC Human Rights Code, “mental disability” includes conditions such as learning disorders, developmental disabilities, depression, anxiety disorders, PTSD and bipolar disorder. “Physical disability” covers conditions such as addiction, amputation, asthma, acne, diabetes, cancer, epilepsy, high blood pressure, hypertension, obesity and impairments to mobility.  

So, what is your responsibility? As an employer you have the “duty to accommodate”, but what does that mean? The duty to accommodate refers to the legal obligation to make changes to rules, practices or physical environments to ensure everyone can participate fully, including those who are disadvantaged due to a protected characteristic under the code.  

This obligation continues only to the point of “undue hardship”, meaning as an employer, your responsibility extends only to the point that it does not cause significant difficulty, such as excessive financial costs or safety risks. 

In practice, accommodation may mean treating employees differently to ensure fairness and prevent discrimination. Understanding these terms is crucial, without them, even well-intentioned employers can unintentionally break the law. 

Recognizing an Accommodation Request

An employee does not need to ask directly for accommodations for the duty to apply.  A request could be as simple as a verbal statement from an employee, such as “I am overwhelmed and cannot concentrate lately”. 

In Willems-Wilson v. Allbright Drycleaners (1997 BCHRT 39), the BC Human Rights Tribunal found that the employer acted improperly when firing an employee whose behaviour was influenced by a mental disability. Although the employee had never explicitly disclosed her depression, the employer was aware of several clear warning signs: she frequently cried at work, attended weekly counselling sessions, and had been hospitalized for emotional difficulties. Given these indicators, the Tribunal held that the employer had a responsibility to ask whether a disability might be affecting her performance before deciding to terminate her. In other words, employers can’t ignore obvious signs of a potential disability – they have a duty to inquire and consider accommodation rather than move directly to dismissal.

As an employer, once you are aware there is a need, you have the duty to start the conversation. This is best done through a collaborative approach, meeting with the employee to assess their needs, and create a path forward that is beneficial for all parties. It is important to keep confidentiality in mind, and limit those involved to only those directly impacted. 

The Accommodation Process

Step1. Identify or Acknowledge the need for Accommodation

If you identify a possible need for an accommodation, speak to the employee privately to assess whether support is required. OR Thank the employee for coming forward and explain that you’ll work together to explore options. 

Step 2. Gather only necessary information

Focus on functional limitations, not medical details or diagnosis. You may request medical documentation, but only such that shows what the employee can or cannot do, and not private health details. 

Step 3. Explore options collaboratively. 

This may include altering start and end times, reducing noise or distractions, temporarily modifying workloads, or discussing gradual return-to-work plans.  Employees in BC have an obligation to participate in their own accommodation.

Step 4. Implement the accommodation. 

Be sure to set clear expectations but keep it flexible as some trial and error may be needed. There is no one-size-fits-all solution to every Mental Health related disability. 

Step 5. Monitor and adjust. 

This may mean scheduling follow-up meetings, or documenting changes and progress to ensure the accommodations remain effective.  

Step 6. Keep records.

It is important, for both you and the employee’s sake, to keep track of all changes made and options considered. This could protect you should the decision be challenged.

Examples of Reasonable vs. Undue Hardship

Reasonable accommodation could include:

• Allowing an employee with depression to start later to accommodate medication side effects
• Approving remote work for part of the week for an employee with severe anxiety

Undue hardship could include:

• Accommodations requiring multiple additional hires at significant cost
• Changes that create safety risks in safety-sensitive positions. 

It is important to note that undue hardship is rare, and it must be supported with solid evidence. 

Additionally, the size and nature of your company may impact how undue hardship is assessed. For example, a small family-owned business may not have the resources to offer remote work or reassign an employee’s duties if there is no one else available to take them on. In contrast, a large corporation with more staff, infrastructure, and budget may be expected to absorb those same changes without significant impact. What qualifies as a significant financial burden, or operational risk is measured by its actual impact on the specific employers’ operations. 

Common mistakes to avoid  

• Waiting for a formal request. Act when you become aware of a possible need.
• Asking for unnecessary medical details. Focus on what the employee can and cannot do. 
• Applying the same solution to every case. Each situation is unique. 
• Failing to follow-up. Accommodations may need small changes and over time. 

Conclusion

Accommodating mental health in the workplace is not only a legal duty under BC’s Human Rights Code, but also a smart investment in your people. By understanding the law, recognizing requests early, and following a clear, documented process, you can create a workplace that supports employees while protecting your business from legal risk. When in doubt, consult resources from the BC Human Rights Tribunal, or contact our team at Glendinning Smith LLP for guidance. A proactive approach today can prevent costly disputes down the road, and help you build a stronger, healthier team.