Canadian HR Reporter

CANADIAN HR REPORTER November 16, 2015 EMPLOYMENT LAW 5 You are invited to a free HR Seminar Tel 416.603.0700 | 24 Hour 416.420.0738 | Fax 416.603.6035 | www.sherrardkuzz.com DATE: Wednesday December 2, 2015; 7:30 – 9:30 a.m. (breakfast at 7:30 a.m.; program at 8:00 a.m.) VENUE: Mississauga Convention Centre 75 Derry Road West, Mississauga, L5W 1G3 COST: Complimentary RSVP: By Monday November 16, 2015 at www.sherrardkuzz.com/seminars.php presented by *** Law Society of Upper Canada CPD Hours: This seminar may be applied toward general CPD hours. *** HRPA CHRP designated members should inquire at www.hrpa.ca for eligibility guidelines regarding this HReview Seminar. Invisible and Episodic Disabilities Ranked In Leading Firm CHAMBERS GLOBAL 2015 2013 RANKED Managing an employee with a disability can be challenging - even more so if the disability is invisible or episodic. Join this HReview as we discuss workplace strategies to identify and address two prevalent invisible and episodic disabilities: depression and allergies/sensitivities. Depression The World Health Organization estimates by 2020 depression will be the second most common disability in the world – after heart disease: • What are an employer's obligations in the case of an invisible disability such as depression? • When is the duty to accommodate triggered? • How might an employer balance its duty to accommodate with potential safety risks (for other employees, and the employee with the disability)? • Best practices. Allergies and Sensitivities Peanuts, gluten, fragrances, smoke, workplace chemicals – allergies to these and other substances are on the rise, in some cases with the potential to threaten the life and safety of employees: • Is an allergy a disability? Is an environmental sensitivity a disability? • What is an employer's duty to accommodate under human rights legislation? • What exposure might an employer face under occupational health and safety legislation if the employer is aware of an allergy and does not limit triggers in the workplace (e.g., scents, etc.)? • Best practices. e good fi ght against workplace bullies 4 strategies to help mitigate risks posed by workplace bullying and harassment Of the many workplace issues faced by employers in Canada, workplace psychological harass- ment and bullying is becoming increasingly prominent and, in turn, recognized in employment law. Courts across the country are ac- tively acknowledging the impact workplace harassment can have on an employees' physical and mental well-being — not to men- tion their workplace productivity — and delivering rulings designed to compensate employees for psy- chological injuries. is is a major departure from decades past, when a touch of bul- lying was considered a veritable rite of passage in the corporate world. A boss picking on an em- ployee was not only acceptable, but a part of life. Many bullied employees would eventually mete out similar treatment to col- leagues and their direct reports. Further spiking the incidence of this misconduct is the prevalence of cyberbullying, which can ex- tend well beyond the workplace. Cyberbullying is just as insidious in its reach and impact, and with email and social media, far easier to carry out. Cyberbullying policy enforce- ment, on the other hand, poses a far greater challenge for time- pressed and resource-limited employers. As a result, many in- cidents of online psychological harassment go unnoticed by em- ployers struggling to manage and grow their businesses, let alone monitor employees' electronic communications both inside and outside the workplace. Despite the increasing aware- ness of harassment and bullying in the workplace, the incidence of psychological abuse is still sub- stantial. Seventy per cent of Ca- nadian employees report some concern related to psychological health and safety, according to a 2012 survey by Ipsos Reid of more than 6,600 employees. e toll this kind of harassment has on employees and employers cannot be underestimated. Vic- tims of workplace psychologi- cal harassment can experience a range of debilitating health ef- fects, including anger, feelings of frustration, inability to sleep, stomach pains, headaches, inabil- ity to concentrate, and low morale and productivity, according to the Canadian Centre for Occupation- al Health and Safety. In addition to the health prob- lems, psychological harassment can negatively aff ect an organiza- tion's performance. For example, lost productivity related to ab- senteeism, presenteeism and em- ployee turnover costs employers $6.3 billion each year, according to a 2011 study by the Mental Health Commission of Canada. These costs include expenses related to stress-related illnesses, short- and long-term disability claims, use of employer-assisted plans, hu- man rights violations, health and safety breaches and low employee morale. Ontario case One recent case law development demonstrates the trend of recog- nizing the eff ects of psychological harassment and bullying on em- ployees, as one tribunal expanded entitlement to workers' compen- sation benefi ts for mental stress. In April 2014, Ontario's Work- place Safety and Insurance Ap- peals Tribunal (WSIAT) declared a section of the Ontario Work- place Safety and Insurance Act relating to mental stress to be unconstitutional and it refused to apply the provisions. The legislation distinguishes physical from psychological in- juries, and sections 13(4) and (5) disqualify employees from mak- ing workers' compensation claims for mental stress, except where employees suff er from traumatic mental stress, which involves "an acute reaction to a sudden and unexpected traumatic event aris- ing out of and in the course of… employment." As such, entitlement would only be granted where there is a "sudden" or "traumatic" event, and would be denied for mental stress caused over a period of time. ese provisions were consid- ered by WSIAT in a case involv- ing an Ontario nurse who faced psychological harassment and bullying from a doctor for whom she worked for 12 years. The nurse was regularly embarrassed in front of her peers or patients, and was required to communicate with the doctor only through writ- ten notes, among other demean- ing abuses. When the nurse raised her con- cerns to a team leader, she faced eff ective demotion with a reduc- tion in responsibilities, although her job title went unchanged. She would soon develop a psychologi- cal injury that included anxiety and depression, and was unable to work. e nurse's subsequent work- ers' compensation claim was de- nied because her mental stress was not "an acute reaction to a sudden and unexpected traumatic event" as per the legislation's cri- teria for receiving benefi ts relating to mental stress. As a result, the nurse challenged the decision in an appeal to WSIAT, arguing her equality rights had been violated under the Canadian Charter of Rights and Freedoms. e tribunal ruled the Work- place Safety and Insurance Board (WSIB)'s criteria was unconsti- tutional on the grounds psycho- logical injuries can occur over time and needn't be "sudden and unexpected." WSIAT declined to apply this provision and granted the nurse entitlement to benefi ts for mental stress. e repercussions from the rul- ing remain to be seen — WSIAT decisions are only binding on par- ties to the appeal — but its direc- tion could shape formal policy or lead to legislative changes across Ontario and other provinces in the years ahead. It appears this approach to entitlement for mental stress has MANAGERS > pg. 14 Laura Williams Legal VieW increasingly prominent and, in turn,

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