Is mental illness a disability?

This article was first published in the Trinidad Express Newspapers on November 17th 2019.

The handling of mental illness in the workplace is an issue that has not been formally or specifically addressed in T&T. Unlike physical illness which has legislative coverage under the Minimum Wages Act, mental illness, which is frequently the precursor to the physical and cannot be separated from it, is not covered in policy or practice in most organizations. While it may be argued that the term “sick” can apply to both physical and mental illnesses, it is rarely interpreted as covering the mental. This is hardly surprising, as the latter may be so difficult for a lay person, or even the ill person themselves, to spot.

The consequences of mental illness can be important factors in negligent performance, disastrous inter staff and management-staff relationships, a resultant lack of morale, “disciplinary” problems, workplace safety, and even covert or overt sabotage.

Let me begin by noting that there is a difference between mental illness and conditions of normal stress, frustration, anxiety, what we call “the blues”, what Winston Churchill once made famous by referring to “being bitten by the black dog”.

Mental illness is clearly associated with significant distress and impaired functioning and there is no exact distinction when the fine line between normal distress and mental illness may be crossed over. It varies from person to person but an be very noticeable by people with whom someone works or interacts regularly as sudden changes in behavior, as extreme reactions to normal events, or as withdrawal from all normal interaction.

Normal human beings get depressed, irritated, anxious, fed up, or even off balance from time to time, especially when facing traffic, control freaks or adolescent behavior on a daily basis. Mental illness is different, although it can be acknowledged that it may shift from one end of a scale that indicates how an individual nervous system deals with these and pushes someone to the far end of the continuum where mental illness is real illness and not just an excuse for a day off.

The depression that accompanies a hangover or the hormone fluctuations that are caused by a sudden rush of testosterone in males or estrogen in females, (and sometimes vice versa) that can result in irrational rushes of anger or irrational mood swings are usually temporary, can be handled by medication, and are not what we generally consider disabling mental illness. Any resultant aggressive or insubordinate behavior in the office will result in genuine disciplinary action as it is expected that the average adult knows enough to get normal medical help for hormone fluctuations just as Tylenol can deal with hangover symptoms.

As mental illness has become a focus of national attention due to official concern being rightly expressed by psychologists over the growing numbers of suicide cases, domestic murders, infant mutilation, and in-school violence, it may be passing curious that awareness of mental illness does not seem to have percolated down into the Industrial Court which has the responsibility for examining not only the results of attitudes and actions leading to suspensions and dismissals but also the causes of such behavior.

Employers have a duty of care to accommodate employees’ medically defined disability from mental illness just as they do any physical disability up to and including hospitalization. But how do you judge when it is a mental disability? In the same way that having a cold will not be accepted as being a physical disability, mood swings will not be defined as a permanent disability.

There has been a recent Canadian case that illustrates the difficulty. At the University of Western Ontario a Lab Assistant had a job that required him to conduct experiments on living lab animals. This was against his personal beliefs, but it was a standard responsibility of the lab staff, which he knew when he took the position and he did try to carry out the function in good faith. 

But over time his absenteeism grew, to the point where he stopped coming to work altogether. His union argued the absenteeism was caused by stress and anxiety which had grown as a result of performing the experiments and he began to show signs of irritability, nausea and insomnia.  The doctor called by the union to examine him could find no biomedical reason for his symptoms and in his report stated that the man refused psychological counseling as he had no symptoms while not at work.

The University pointed out that there was therefore no evidence of a disability which would require a disability payment; there was only an internal conflict between the employee’s duties and his own moral code. Relying on the Canadian Human Rights Code, the union argued that the interpretation of “disability” should focus on the results of the medical condition, not on the biomedical evidence, or lack of it.

The court sided with the union, saying that the physical disability was real and not caused by the employee’s moral objections alone but also the stress and anxiety that resulted in his inability to attend work.

Under T&T legislation, this outcome could have been termed “Constructive Dismissal”. Presumably, if there had been another position within the lab that he could have been reassigned to, the termination would not have resulted.

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