Managing Mental Health in the Workplace
Advanced Procative Strategies for Confronting Challenges, Minimizing Claims & Reducing Risks
DAY ONE | APRIL 15, 2010
8:30
Opening Remarks from the Co-Chairs
Jeff Goodman, Partner, Heenan Blaikie
Hugh R. Scher, Scher Law Professional Corporation
8:45
Demystifying Mental Health Issues
Dr. Eyal Bodenstein, Psychologist, Dr. Eyal Bodenstein & Associates
Dr. Sandra Fisman, Psychiatrist, Chair, Department of Psychiatry, University of Western Ontario
Mark Handelman, Barrister & Solicitor, Health Law Matters, Part-time Member, Human Rights Tribunal of Ontario
Identification
- What is it? Why might it arise?
- Are stress and depression recognized disorders?
- What are the most common, root causes?
- What are the symptoms?
- Understanding the diagnosis process
- Confronting the obstacle of subjectivity
- Are there any objective indications?
- Are second opinions warranted? What if they conflict? - Treatment & Prognosis
- Do effective treatments exist?
- Various treatment options: stress versus depression
- When is medication considered an effective treatment?
- What is the prognosis for: Stress? Depression?
Assessment & Functionality
- Personal and social functionality versus work functionality: is there a difference? Why?
- How does a medical professional determine whether a leave from work is required?
- From the patient’s perspective
- Understanding why an employee might hesitate to report illness and seek help: fear; stigma; denial
10:00
Networking Coffee Break
10:15
Proactively Addressing Mental Health Issues: Reducing Absenteeism
Liz R. Scott, PhD, MEng, MBA, MSc, COHN, RN, CRSP, CDMP, Principal, Organizational Solutions
- Avoiding mass stress-leave requests in the economic up-turn
- To what extent can the employer legally rely on the employee to absorb the extra work?
- Considering cost-savings & liability risks: is it best to hire as soon as the economy begins to recover? - Minimizing/preventing workplace mental health issues: implementing practical solutions with no additional resources
- Identifying key risk factors for mental illness onset
- Examples of work environments that increase employee susceptibility to mental illness
- Facilitating and developing a healthy work environment
- Understanding front-line managers’ roles in preventing mental illness and reducing absenteeism
- Training your managers to identify early warning signs, key risk factors and conduct indicative of mental illness
- Is it a proneness or mere burnout? - Teaching managers to confront and communicate with employees about an emerging/existent mental illness
- Recognizing when poor performance is masked mental illness: installing intervention benchmarks
- Implementing cost-effective procedures and policies for managing absenteeism in the workplace
11:15
Legally Managing Mental Health Issues in the Workplace
Jeff Goodman, Partner, Heenan Blaikie
- Recognizing the legal limitations of discussion, employee disclosure, privacy rights and obligations
- Strategic medical info requests: obtaining the information necessary to assess absence-requirements and return to work timelines
- Ensuring practitioner-accountability
- Getting the right information - Identifying legal limits and appropriate circumstances for requesting independent legal examinations
- Minimizing the trial & error treatment process
- Obtaining accurate assessments for treatment options
- Should a psychiatric professional be the one to provide diagnosis and treatment plan? Does family physician’s assessment suffice?
- Determining whether the employee requires a leave
- Ensuring treatment-plan and medication compliance
12:00
Networking Luncheon for Delegates & Speakers
1:15
Winning Strategies for Ensuring a Legally Compliant & Timely Return to Work
Kevin Robinson, Lawyer and HR Advisor, Bernardi Human Resource Law
- Acting fast: ensuring treatment is readily accessible; tips for expediting the process
- Identifying the role of the employee, employer, physicians and union in the return to work process
- Constructing a supportive and stigma-free environment
- Working with employee and their treatment professional to:
- Overcome the fear of returning to work
- Identify and remove any workplace stressors
- Identify employee’s limits on performance
- Employ an effective transition plan, so as to avoid a relapse or subsequent leave - Confronting some of the legal pitfalls that may arise when attempting to tackle the above four challenges
- Remain flexible and create alternative work
- Taking proactive steps to absorb any impacts on organizational functions and operations
2:15
Duty to Accommodate: Legal Update & Practical Solutions
Moderator:
Jeff Goodman, Partner, Heenan Blaikie
Panelists:
Luc Deshaies, Partner, Gowling Lafleur Henderson LLP, Leader, Employment & Labour Law National Practice Group
Reema Khawja, Counsel, Human Rights Tribunal of Ontario
Lorenzo Lisi, Lawyer, Sherrard Kuzz LLP, Cross-Canada Legal Update
- Examining recent legal developments: the duty to accommodate
- Assessing the legal implications of managing and accommodating employees with mental illness
- Identifying new/emerging accommodation obligations: under various
- Human Rights Codes vs the Federal Labour Code
- What is the employer’s duty? When is it met?
- “Job bundling”: to what extent are employers expected to do this? - Analyzing the “undue hardship” threshold
- When does accommodation become too burdensome for the employer?
- Can a large business ever meet the threshold? - Identifying union expectations for their members during accommodation: what to do if there is a relationship breakdown between the union and its member
- Does failure to accommodate impact employer liability?
A Practical Guide
- Examples of improper accommodation
- Proven techniques for developing, restructuring and implementing legally compliant accommodation policies: considerations for small, large and unionized workplaces
- Creating flexible accommodation procedures
- Strategically involving union representatives, medical practitioners and insurers in the accommodation plan
- Ensuring a successful and smooth transition
- Reintegrating recovered vs still-suffering employees
- Employee-tailored accommodation plans
- What if the employee rejects the proposed accommodation plan?
- Creating a supportive and stigma-free workplace: dealing with colleague-perception fears
- Dealing with co-workers: ensuring coworkers aren’t negatively impacted or frustrated by returning employee
- Implementing review procedures, follow-up practices and open-door policies
- Training management to be approachable and empathetic - Tips for implementing documentation templates and procedures that will reduce risk of liability
- Strategies for reducing likelihood of relapse or subsequent leave
- Dealing with reliability issues
- Fulfilling Human Rights duties while continuing to manage your business (i.e. business image issues)
3:45
Networking Coffee Break
4:00
Proving or Disproving a Mental Health Claim
Christine M. Thomlinson, Partner, Rubin Thomlinson LLP
Step 1: Working with the family physician to obtain a proper psychiatric assessment
- Practices that guarantee receipt of required information
- Techniques for communicating with the physician
Step 2: Identifying the key points at issue
- Is the employer/insurance company contesting the existence of a mental illness or the treatment plan?
- Understanding how the insurer determines eligibility
Step 3: Collecting the Necessary Evidence
- Understanding the limits of privacy on employers: identifying what information can legally be requested and implementing processes to expedite its attainment
- Strategically using independent medical examinations to reduce risk of liability: choosing the right medical expert
- Dealing with credibility issues
Step 4: For and Against
- Techniques for successfully proving a claim
- Successfully defeating a claim
- Techniques for insurance companies to rebut claims
5:00
Co-Chairs’ Recap – Conference Adjourns
DAY TWO | APRIL 16, 2010
8:15
Opening Remarks from the Co-Chairs
8:30
Confronting Common Employer Challenges
Ross Dunsmore, Dunsmore Law
Norm Keith, Partner, Gowling Lafleur Henderson LLP
Navigating the Privacy Challenges
- Dos and don’ts for collecting medical information
- What information can be shared among the various parties?
- Identifying if/when contact with employee on leave becomes harassment
- Can employee request that employer refrain from communicating?
- How can an employer accommodate if they are asked to back off? - Communicating with employee, while remaining within the confines of privacy laws
- Identifying when surveillance ought to begin: what are the limits?
Can surveillance be helpful when measuring subjective illnesses?
- Has the debate surrounding plaintiff’s privacy versus surveillance been settled by the courts?
Terminating the Accommodated Employee
- Reviewing the case law on termination
- Can a leave of absence ever result in frustration of the employment contract?
- Identifying when termination is appropriate
- Can innocent absenteeism become grounds for termination?
- Can an employer terminate for “abandonment of job” (i.e. lack of adequate communication with employer while on leave)?
- Looking at notice, severance and tax considerations - Implementing advanced documentation procedures to track history of absenteeism, employee performance and accommodation efforts
- Identifying other issues surrounding termination
- Other options: Is temporary suspension a better route?
10:00
Networking Coffee Break
10:15
Legal Developments on Damages
Hugh R. Scher, Scher Law Professional Corporation
- Examining recent legal developments under the various heads of damages
- Identifying what the courts are looking for when assessing damages
- Knowing your risk of liability: Analyzing the notion of negligent infliction; do damages skyrocket where employer has caused or aggravated the mental illness?
- Where do damages stand in “bad faith denial” claims?
- Predicting the impending direction of employer liability for failing to meet accommodation obligations
- When filing a grievance, how do you determine what a reasonable request for damages is?
11:00
Understanding the Employee’s Duty to Cooperate
Karen Bock Ph.D., Partner, Davis LLP
- Identifying the employee’s obligations in the accommodation process
- When has employee met his/her duty to cooperate?
- Does failure to follow the treatment plan automatically constitute failure to cooperate? - Assessing the employers’ possible recourse where the employee has failed to cooperate
- Comprehending how failure to cooperate impacts an employee’s claim against their employer
- Can employer discontinue/decline coverage where employee fails to cooperate?
- Examples of adequate vs inadequate cooperation
11:45
Gearing Up for Reform: Bill 168
Hena Singh, B.A. Hons., MA, LL.B., Rubin Thomlinson LLP
- Where does Bill 168 stand?
- What is its object and purpose?
- What does it mean for employers? What are the employers’ legal requirements?
- How might Bill 168 affect “wrongful dismissal” claims, where employer terminates in an attempt to protect other employees from violent behavior?
- If employer fails to “protect”, do other employees have a potential claim against the employer? - What implications will this bill have on privacy issues?
- Other means of enforcing personal harassment or bullying claims
12:30
Networking Luncheon for Delegates & Speakers
1:45
Special Challenges Faced by Insurers and Employers
Michael P. Fitzgibbon, Co-Founder, Watershed Law
Hugh R. Scher, Scher Law Professional Corporation
- Comparing mental health and other disability claims
- Is the insurer still on the hook to pay disability when the employee has failed to accommodate?
- Advanced techniques for working with the employer to appropriately accommodate and expedite return to work
- Does the employer have a positive duty to look further when employee is positively diagnosed but denied coverage? What are the remedies if employer doesn’t?
- Employee takes intermittent leaves but doesn’t want to go on long-term disability: what do you do?
- Determining whether to cover off an absence: pros and cons of using a temp-agency
- Communicating with insurer: obtaining relevant information while remaining within the confines of privacy parameters
2:45
Networking Coffee Break
3:00
Why Litigate? Let’s Negotiate: A Mediation Guide
Barry Kuretzky, Partner, Kuretzky Vassos Henderson LLP
Barry B. Fisher LL.B., Mediator & Arbitrator
The reality is that most claims go through mediation and are eventually settled. This session will give you the tools to ensure that your mediation runs smoothly and expeditiously.
- Pros and cons of mediation vs. litigation
- Understanding the DSM-IV
- Types of disputes that can be mediated
- Joint session or no joint session
- Adjusting the mediation process to fit the situation
- Talking frankly with the client about his/her mental illness
- How a mental illness can affect the client’s thought process in a mediation setting
- Use of family members in a mediation
- Returning the client to the workforce
- Ensuring a binding settlement
- Lawyer/client relationship issues
- Ongoing mental health issues of the client post mediation
4:00
Tips for Communicating with Mentally Ill Union Member/Client
William D. Anderson, Partner, Blaney McMurtry LLP
- Does the mentally affected employee have the capacity to give instructions to their lawyer
- Rules Recap: can you refuse a client because they lack capacity?
- Advanced techniques for confronting the capacity issue: what are your options?
- Protecting yourself from liability: ensuring you are obtaining clear instructions from your client
- Union representatives: Communicating with members who are suffering from mental health issues
4:45
Co-Chairs’ Closing Remarks – Conference Concludes