Canadian Safety Reporter - sample

3 Canadian HR Reporter, a Thomson Reuters business 2019 News |Canadian Safety Reporter New workplace stress entitlements may not be so stressful for employers New Ontario legislation grants workers' compensation benefits for mental health injuries, but the bar for entitlement is high BY LAURA WILLIAMS IT'S NO secret that employers in Ontario have been overwhelmed by the sweeping array of labour and employment law changes of the past two years. From Bill 148, The Fair Work- places, Better Jobs Act, 2017, to the legislation that rescinded most of it — Bill 47, the Making Ontario Open for Business Act, 2018 — and a host of other new statutes such as the Pay Trans- parency Act (the implementa- tion of which has been delayed indefinitely), business owners, managers and HR professionals have faced unprecedented HR law compliance challenges. While many in the business community are applauding the Progressive Conservative gov- ernment's efforts to correct that perceived legislative over- reach, they remain frustrated by the need to amend employee policies, HR procedures and em- ployment contracts once again. Nonetheless, they're welcoming a reprieve from the former Lib- eral government's efforts to level the employment playing field through the implementation of worker-friendly legislation, which many business leaders deemed a direct threat to their organizations' growth and suc- cess. The passage of Bill 127, the Stronger, Healthier Ontario Act, 2017 — implemented on Jan. 1, 2018 — only fueled that percep- tion. The wide-ranging budget implementation bill amended the Workplace Safety and Insur- ance Act, 1997 (WSIA), among many other pieces of legisla- tion. In doing so, it granted Workplace Safety and Insurance Board (WSIB) benefit entitle- ments to employees suffering from mental health injuries. The amendment was spurred by a Workplace Safety and Insur- ance Appeals Tribunal decision that found the former provisions of the WSIA covering mental stress, and denying employees coverage for such injuries, were unconstitutional because men- tal health injuries were treated differently than physical injuries. What raised the ire of employ- ers, however, was the fact that workers would now be eligible to apply for WSIB benefits relating to an appropriately diagnosed, chronic mental stress caused by a "substantial work-related stressor." Employees would not be entitled to stress-related ben- efits relating to their employ- ment, such as a change in job- related duties, discipline, or their dismissal. Perhaps most alarming to em- ployers was the fact that work- place harassment and bullying would qualify as stressors. At the peak of the #Metoo movement, and a period of heightened sen- sitivity around the impact of negative workplace interactions, employers' exposure to HR law risk seemed to increase dra- matically. Business leaders and HR professionals worried these new entitlements would lead to a raft of new WSIB claims, some legitimate, but others potentially exaggerated or bogus. After all, it would be relatively easy for an employee to claim his work was stressful or that he had been bullied, and therefore use an al- leged mental health injury to file a WSIB benefit claim. It turns out these changes, and employers' concerns, have been much ado about nothing — at least for now. A recent WSIB audit found that more than 90 per cent of chronic mental stress claims have thus far been denied. This is a positive trend for employers fearful of the potential admin- istrative and financial impact of a sharp increase in approved claims — assuming the trend continues, employers should not experience significant increase in approved claims related to employee mental health and corresponding spikes in their premium rates. It remains un- clear if the tide will turn in fu- ture, should the WSIB eventual- ly begin approving more mental health-related claims. However, for the time being, two arbitra- tion decisions from 2018 pro- vide direction as to how the new provision of the WSIA regarding chronic mental stress benefit en- titlement acts as a bar to claims for these sorts of damages where they would now, if proven, be compensable under the WSIA. Distinguishing stress in the course of employment In OPSEU and Ontario (Min- istry of Community Safety and Correctional Services) (Rosati), Re and OPPA and Ontario Pro- vincial Police, Re, arbitrators ruled that proven chronic men- tal stress claims, which would be eligible for compensation under the WSIA rules, would act as a bar to legal claims against em- ployers for damages arising out of the injuries. The reason: under a longstanding WSIA provision — which only became relevant to chronic mental stress claims Credit: Shutterstock/docstockmedia WSIA jurisdiction > pg. 7 A recent WSIB audit found that more than 90 per cent of chronic mental stress claims have thus far been denied.

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