Canadian HR Reporter

CANADIAN HR REPORTER April 18, 2016 NEWS/FEATURES 17 ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS. With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • Over 27,000 lawyers listed • Over 9,000 law fi rms and corporate offi ces listed • Fax and telephone numbers, e-mail addresses, offi ce locations and postal codes Includes lists of: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • Small claims courts • The Institute of Law Clerks of Ontario • Miscellaneous services for lawyers NEW EDITION Perfectbound Published December each year On subscription $80 One time purchase $83 L88804-764 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) practice though, for most em- ployers, it is likely acceptable for an employee to simply inform the employer about the family mem- ber's death," he said. Employers concerned about potential abuse of this type of benefit should be sure to reflect any changes in their written policy and ensure the policy and process of the benefit are consistently applied, said Lisa Kay, president and lead consultant of Peak Per- formance Human Resources in Toronto. It's also crucial to consider the way the entire workforce will be affected by an expanded bereave- ment leave benefit used only by a certain group, said Kay. "e people who are eligible are appreciative and grateful and they are able to take advantage of this and it's good for them but I think the other side of the coin is their colleagues, who are now in a posi- tion to pick up the slack or having to take on an additional workload during this leave period. Helping other employees to transition the work in a way that's not going to negatively affect the rest of the workforce is going to be impor- tant," she said. "Employers really need to be sensitive about that." It is also crucial workers are protected, said Kitay. An employ- ee's tenure, seniority and length of service must continue throughout the leave and the employee cannot be permanently replaced. Furthermore, an employer that provides a benefits plan will have to continue contributions when a worker is on leave. When examining an issue such as the expansion of bereave- ment leave, said Kay, sensitivity is something employers should strive for. "In general, people have be- come more accepting of the idea that family is not the traditional definition that it was 40 years ago. at's expanded so we need to be sensitive to it." It is important for an employer to apply that sensitivity to every aspect of workplace culture, not just to the issue of a bereavement leave policy, said Salopek. "What's really important, and I think we're seeing it more and more, is placing your policies and procedures in alignment with your value propositions," said Salopek. "You hear a lot of forward- thinking organizations speaking about their value proposition because they understand that, in order to compete in the labour market today, they have to pay at- tention to that." Sensitivity required BEREAVEMENT < pg. 9 However, the onus is on the employee. e diagnosis of PTSD must be made by a psychiatrist or psychol- ogist using the current Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5) diagnosis regime. Benefits will not be provided if it is shown the PTSD was caused by the employer's decisions or actions relating to the worker's employment (such as reason- able direction with respect to how the work is to be performed, working condition, discipline or termination). A worker who is not a first re- sponder but is diagnosed with a mental health condition, or is a first responder but has not been diagnosed with PTSD (as de- fined), may still file a claim for compensation for mental stress under the existing WSIA provi- sions. However, there will be no presumption. Retroactive application If passed, the amendments will apply to a PTSD diagnosis made on or after "24 months before the bill comes into force," so long as the worker worked for at least one day since the law is enacted. For example, if Bill 163 was in force today, a first responder working today who was diagnosed with PTSD two years ago could apply for worker's compensation ben- efits for the prior two years — as long as a previous, related claim was not denied. e amendments will also ap- ply to any prior claim currently under appeal — or within the appeal window — provided the diagnosis of PTSD can be made under the DSM-5 (rather than a prior version). Finally, the amendments will apply to a first responder who has stopped work but who is di- agnosed with PTSD within 24 months of the bill coming into force. In the interest of improving workplace health and safety and collecting relevant information, Bill 163 allows the Ontario Minis- ter of Labour to direct an employ- er to provide the ministry specific information relating to workplace PTSD prevention plans. is in- formation may be published. Practical considerations for employers Most, though not all, first re- sponder employers are Schedule 2 employers for the purpose of the WSIA. A Schedule 2 employer does not operate under the collec- tive liability insurance principle, but instead is directly responsible for the full cost of accident claims filed with and managed by the Ontario Workers Safety and In- surance Board (WSIB). As the likely result of Bill 163 will be an increase in successful PTSD claims from first respond- ers, the cost of workers' compen- sation coverage for Schedule 2 employers is expected to rise. In addition, because the bill will apply retroactively, an employer may find itself having to bear the claim costs resulting from past PTSD diagnoses or absences only now attributed to PTSD. In light of the foregoing, and in anticipation of the passage of Bill 163, employers could consider the following proactive steps to mini- mize risk and related worker's compensation costs: • Review existing training and support for first responders to minimize the potential for PTSD in the first place. • Successful return to work is the most effective way to minimize claim costs. Accordingly, con- sider each claim critically and, as soon as possible, provide suit- able modified duties and meet all accommodation responsibilities in order to return workers to the workplace. • Carefully review any related past claim or appeal that may be covered by Bill 163. Consider the medical information in the WSIB claim file or tribunal case record to ensure a prior PTSD diagno- sis fits within the current DSM- 5 criteria. If not, and a claim is brought under the amended act, take steps to ensure the "Bill 163 presumption" is not applied. Carissa Tanzola is a lawyer at Sherrard Kuzz, a management-side employ- ment and labour law firm in Toronto. She can be reached at (416) 603-0700 (main), (416) 420-0738 (24-hour) or by visiting www.sherrardkuzz.com. Review training, claims, appeals to minimize risk, costs PTSD < pg. 15 Credit: Jason Lee (Reuters) Pet owner Qingqiu (centre) holds her dog Little Huoban as her brother (left) and a worker set up flowers around the tomb of her first dog Huoban at Baifu pet cemetery on the outskirts of Beijing on March 26. Some companies are offering employee bereavement leave for pets. Because the bill will apply retroactively, an employer may have to bear the claim costs resulting from past PTSD diagnoses or absences.

• Cover