Canadian HR Reporter

Credit: Pressmaster (Shutterstock) By Joseph Cohen-Lyons and Samantha Seabrook M ental health in the workplace has increasingly become the fo- cus of discussion for employers and lawmakers throughout Canada, and for good reason: e number of incidents of mental health problems amongst Ca- nadians is staggering, and their impact on society, including workplaces, can be signifi cant. In any given year, one in fi ve Canadians experiences a mental health or addiction problem, according to 2011 research from the Mental Health Commission of Canada (MHCC). And many are unable to work due to mental health problems. Compounding this issue is the fact that the cost of a disabil- ity leave for a mental illness is about double the cost of a leave for a physical illness, ac- cording to a 2010 report in the Journal of Occupational and Environmental Medicine. All told, it is estimated mental health costs the Canadian economy about $51 billion every year, according to the MHCC. Recent developments e increased focus on mental health in the workplace has been accompanied by increased potential liability for employers when it comes to employees who suff er mental illness arising out of their duties. In particular, two recent developments in workers' compensation law in Ontario have served to signifi cantly increase the potential cost of mental health claims for employers. In 2014, the Ontario Workplace Safety and Insurance Appeals Tribunal issued a decision (Decision No. 2157/09) that held that the limitation on mental stress claims to those involving "traumatic mental stress" was unconstitutional. Previously (and under current legisla- tion), workers could only make a claim for benefi ts that resulted from a "sudden and unexpected traumatic event." e tribunal's decision has opened the gates to benefi t claims for chronic mental stress arising in and out of the course of employment. In a world where mental stress in the workplace is commonplace, the potential impact on employers cannot be overstated. e second change that is likely to impact employers, although only those that employ fi rst responders, is the introduction of Bill 163, Supporting Ontario's First Responders Act (Post-Traumatic Stress Disorder), 2016. is legislation, which came into force in April, grants presumptive entitlement to all fi rst responders who suff er from post- traumatic stress disorder (PTSD). While the presumption is rebuttable, practically speaking, it will be very diffi cult for em- ployers of fi rst responders to refute a claim brought by an employee who is diagnosed with PTSD. Two signifi cant challenges e prevalence of mental health disorders combined with increased exposure for em- ployers has created two rather signifi cant challenges. e fi rst involves identifying and addressing workplace factors that may give rise to, contribute to or exacerbate the mental stress of employees. Prudent employers ought to have a real and honest assessment of their workplace to identify risk factors with a view to creating a safe workplace that, as much of possible, limits workers' exposure to mental stress. Second, employers are also faced with the increased complexity, and often costs, asso- ciated with accommodating and facilitating the return to work of employees suff ering from mental health concerns. Accommo- dating employees returning from mental stress leave is particularly diffi cult as the restrictions and capabilities are often chal- lenging to identify and can change depend- ing on the prevailing circumstances. Whereas an employee's physical restric- tions can be easy to identify, defi ne and ac- commodate, mental restrictions are often invisible and diffi cult to pinpoint with any degree of certainty. ese concerns have led to employers us- ing new methods of assessing their work- places and facilitating the return to work and accommodation of employees who suff er from mental stress: Cognitive de- mands analysis and cognitive/psychologi- cal functional abilities evaluation. Both of these processes ought to be part and parcel of any employer strategy seeking to manage a changing workforce in the 21st century. A cognitive demands analysis (CDA) is designed to provide an assessment of a workplace and identify the essential job du- ties and cognitive demands of a particular job. Assessors generally test areas such as the amount of concentration to do a job, the demands on memory required and other factors such as time pressures, social interactions, traits required and general stressors that exist in the workplace. A com- prehensive CDA can provide an employer with a relatively clear picture of the cogni- tive needs of a particular position, as well as the stressors that exist that may give rise to mental stress in the workplace. Employers should consider engaging a consultant to conduct a CDA as a pre- emptive measure to assess the workplace and associated risks. A proactive approach can assist an employer in identifying the unique challenges and risks presented by their workplace, and help them implement programs and procedures aimed at reduc- ing the incidents of mental stress arising from the workplace. It can also help disability managers and HR employees to understand the demands at each position, making them more able to respond to accommodation and return to work challenges as they arise. A cognitive/psychological functional abilities evaluation (CP-FAE), on the other hand, is designed to assess the cognitive and psychological capabilities of the employee as opposed to the workplace. It is generally conducted by a qualifi ed assessor, such as a psychologist or neuropsychologist, and can provide objective measurement of an employee's general learning ability, concen- tration and attention, visual perception and processing, information-processing, mem- ory, multi-tasking, reasoning and a variety of other cognitive markers. Employers should consider engaging a specialist to conduct a CP-FAE anytime an employee is returning from a mental health-related leave. A well-done evalua- tion can help identify the real roadblocks in the return to work and accommodation, and go a long way in ensuring the employee is set up for success. While accommodating an employee with mental health issues continues to be a diffi cult task, it is important for em- ployers to have the information necessary to understand the particular employee's unique needs and design an accommo- dation plan that is consistent with those needs. A CP-FAE is about obtaining that vital information. Most disability management consultants should off er both CDA and CP-FAE servic- es, or services that are substantially similar to them. As described above, employers should consider conducting a CDA for each position in the organization, similar to the physical demands analysis (PDA) they likely already have in place. Employers have traditionally spent a great deal of time and money understand- ing the physical demands of the workplace and the physical capabilities of employees — it's time they took a similar approach to mental and cognitive demands. Both based at Hicks Morley in Toronto, Joseph Cohen-Lyons is a labour and employment lawyer and Samantha Seabrook is a labour and employ- ment lawyer and co-chair of the fi rm's workplace safety and insurance practice group. For more in- formation, visit www.hicksmorley.com. A proactive approach can help disability managers and HR understand the demands of each position. The rise of MENTAL HEALTH FEATURES A look at new methods to assess workplaces and facilitate the return to work and accommodation of employees suffering from mental stress

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