Canadian Employment Law Today

working hours or productivity expectations. Where a worker's mental stress arose from both the employer's employment-related de- cisions and a work-related stressor that does not involve the employer's employment- related decisions, the Draft Policy provides that the employee will generally be entitled to benefits for the mental stress as long as the work-related stressor is a significant contrib - uting cause. e WSIB is currently considering stake- holder feedback and finalizing the Draft Pol- icy. e policy will come into force on Jan. 1, 2018, simultaneously with the Bill 127 amend- ments, and will only apply to cases of mental stress with accident dates on or after that date. Bill 132 requirements will likely lessen stress claims Bill 127 is not retroactive — despite that Decision No. 2157/09 recognized that mental and physical injuries should be treated in the same manner back in 2014 — and the WSIB's decisions in the three years since then, as well as its earlier decisions, have not followed this principle. ere- fore, employers will not be liable for any incidences of chronic mental stress that arose prior to Jan. 1, 2018. Unlike the ret- roactively applicable amendments to the Limitations Act, 2002 introduced by Bill 132, which removed limitation periods for civil assault and sexual assault, the WSIA amendments in Bill 127 will not require employers to sift through past records and determine whether incidents they thought long past and settled may now have to be addressed because of new employee en- titlements. Nonetheless, claims for WSIB benefits for chronic mental stress claims moving forward are likely to increase some employers' WSIB premiums. Notwithstanding the exemptions for employment-related actions and decisions, employers should take care to proactively monitor their workplaces for situations that could lead to employees experiencing men - tal stress in the workplace. To this end, the harassment policies and procedures that employers introduced to comply with their new OHSA obligations under Bill 132 will help employers uncover and minimize situa - tions likely to cause employees chronic men- tal stress. Furthermore, measures taken to clarify conduct expectations to everyone in the workplace as part of training under Bill 132 will likely similarly reduce the occur - rence of the types of inappropriate behaviour likely to lead to chronic mental stress, and thereby limit WSIB accident costs related to chronic mental stress. e treatment of mental health issues un - der the Bill 127 amendments to the WSIA significantly departs from previous attitudes towards mental health. Although mental health issues have historically been viewed as personal and unrelated to work, they cause substantial labour interruptions in Canada and account for millions of dollars in lost productivity. Employers that develop robust strategies and policies for identifying and resolving workplace harassment issues will receive a triple benefit: increased pro - ductivity and attendance from employees, avoidance of fines and penalties for failure to comply with the OHSA's new Bill 132 ha- rassment obligations, and minimizing new WSIB claims costs for employees suffering from chronic mental stress. For more information see: •Decision No. 2157/09, 2014 CarswellOnt 6239 (Ont. Workplace Safety & Insurance Appeals Trib.). Canadian HR Reporter, a Thomson Reuters business 2017 October 11, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR JOEL SMITH Joel Smith is a lawyer with Williams HR Law in Markham, Ont., where he practices management- side labour, employment, and human rights law. He can be reached at (905) 205-0496 ext. 224 or jsmith@williamshrlaw.com. Joel was co-counsel for the employer in the case discussed above. CREDIT: KIEFERPIX /SHUTTERSTOCK

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