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Can I take a “mental health day”?

  • Yes. The law requires employers to treat mental and physical health difficulties the same. If an employee is dealing with a mental health issue such as stress, anxiety or depression, and requires time to recover, this must be treated the same as any other health difficulty or physical ailment.

How much do I have to tell my employer?

  • The law tries to balance the rights of employers to medical information with the employee’s right to privacy.  Employers should be given only enough information to properly accommodate an employee. Generally, employers are entitled only to know how the employee’s condition is developing or progressing (a prognosis) and not the exact details of the health condition (diagnosis).

Do I just need a note from my doctor?

  • While your diagnosis is determined by a physician, the duty to accommodate is a legal test. Your medical questionnaire or doctor’s note should properly list your medical limitations and restrictions so that your employer can properly accommodate you.  A lawyer can work with your doctor to provide this information while still protecting your privacy.

What if my employer does not have a process or support system in place?

  • An employee’s rights do not depend on an employer’s readiness or willingness to act on them. Having legal support from the outset can ensure your needs are met, and even help establish long term processes.

What if it is too late?

  • Even if your employer provided early accommodations for your health concerns, your full recovery gives you the right to return to your former role.

Can I be fired?

  • If you were fired due to the impact your disability had on your workplace, your employer may have violated human rights legislation. Even if the termination was just tainted by the disability, this could be enough to ground a claim of discrimination. Damages can include financial relief and/or reinstatement.

What if everybody finds out?

  • Your mental health disability must be treated confidentially by your employer. They cannot inform your colleagues.

Will be paid in full if I am on modified duties?

  • Yes, if an employee is working reduced hours, it may be appropriate for an employer to reduce their pay in a manner which corresponds to their reduced hours.  For example, if an employee was formerly working five days/week and is now is working only three days/week because of a return to work plan, it is appropriate for the employer to pay that employee 60 % of his/her previous salary.

How far does an employer have to go to accommodate an employee?

  • Accommodation has both a substantive and procedural component.  The procedural component requires that an employer first consider what steps could be taken to assist that employee.  Failure to give the issue careful thought might be a violation of the procedural duty to accommodate.  The substantive part the analysis considers the reasonableness of the actual accommodation offered or the employer’s reasons for not providing accommodation.  The employer must accommodate the employee unless this causes undue hardship.
  • The Ontario Human Rights Code states that, when considering what level of accommodation would constitute undue hardship, only the cost of accommodation (including outside sources of funding) and any health and safety requirements should be considered.  For example, it does not matter if the business is inconvenienced.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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