Canadian Employment Law Today - sample

Stressing over worker's compensation in Ontario New Ontario legislation expanding benefits eligibility to include more mental health injuries in 2018 BY JOEL SMITH P reventing workplace harassment and managing its impact on workers and the workplace as a whole has been a key focus of several significant pieces of recent Ontario legislation. In March 2016, Bill 132, the Sexual Violence and Harass - ment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Ha- rassment), 2016, received Royal Assent. Bill 132 included significant amendments to the province's Occupational Health and Safety Act (OHSA) that strengthened employees' protections against workplace harassment and violence from colleagues, managers, and third parties in the workplace. Bill 132 itself was meant to build on amendments made to the OHSA in 2010 by Bill 168, the Occupational Health and Safety Amend - ment Act (Violence and Harassment in the Workplace), which primarily addressed workplace violence but left employees with minimal substantive protections against workplace harassment. Extending workers' compensation benefits to chronic mental stress e government of Ontario has continued its trend of increasing protections against workplace harassment and violence with Bill 127, the Stronger, Healthier Ontario Act (Budget Measures), 2017. e Ontar- io legislature passed Bill 127 in May 2017. Among the changes included in the bill are amendments to the Ontario Workplace Safety and Insurance Act, 1997 (WSIA), which will alter entitlements in various categories and, significantly, will entitle employees to Workplace Safety Insurance Board (WSIB) benefit coverage for both traumatic and chronic work-related men- tal stress. Under the current WSIA, employees may receive benefits for mental stress only if it is traumatic, meaning that their mental health injuries resulted from an acute re - action to a single sudden and unexpected event. Chronic mental stress, on the other hand, is considered by the WSIB to arise out of work-related events that are considered non-traumatic, such as being subjected to humiliating jokes, demeaning conduct, or persistent criticism by a co-worker over a long period of time. e Bill 127 amendments to the WSIA that pertain to chronic mental stress come into force on Jan. 1, 2018. Differential treatment for physical and mental injuries unconstitutional e current requirement that mental stress be "traumatic" constitutes a high threshold for employees to prove entitle- ment to workers' compensation benefits for mental stress. In comparison, there are relatively few limitations on entitlement to benefits for physical injuries. As a result, significant differences exist between the WSIB's treatment of physical and mental injuries. In its 2014 Decision No. 2157/09, the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) held that the provisions of the WSIA covering mental stress are unconstitutional. Specifically, the WSIAT found that those provisions violate the right to equality under s. 15 of e Ca - nadian Charter of Rights and Freedoms, be- cause workplace mental health injuries are treated differently from physical injuries. Although the WSIAT's decision was widely recognized as changing the landscape of workers' compensation law with regards to mental stress, the WSIB has since largely continued to decide these matters as before, on the basis of the WSIA provisions that were found unconstitutional. Beginning in 2018, however, the Bill 127 amendments will compel decision-makers to treat men - tal stress injuries according to the principles laid out by the WSIAT. Policy on work-related chronic mental stress in development To implement the Bill 127 amendments, the WSIB has issued a Draft Policy on work-related chronic mental stress, which clearly distinguishes between traumatic and chronic mental stress. e Draft Poli- cy entitles employees to WSIB benefits for chronic mental stress if the stress is caused by a "substantial work-related stressor," which must be "excessive in intensity and/ or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances." Work- place harassment and workplace bullying are classified as "substantial work-related stressors." However, interpersonal con- flicts between a worker and supervisors, co-workers, or customers will not gener- ally be considered "substantial work-relat- ed stressors," unless they rise to the level of bullying or harassment or result in threat- ening or abusive behaviour. e Draft Policy confirms the exception set out in Bill 127 that no benefits for trau- matic or chronic mental stress will be avail- able when the mental stress arises out of employers' employment-related decisions and actions, such as demotions, termina- tions, transfers, discipline, and changes in IN 2014, the Ontario Workplace Safety and Appeals Tribunal found that it was unconstitutional to require work- related stress to be traumatic to be eligible for workers' compensation. However, this requirement effectively remained in place for years. Now, the Ontario legislature has passed Bill 127, which enshrines in law the eligibility of both traumatic and chronic work-related stress. Employment and human rights lawyer Joel Smith looks at what this may mean for employers. 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: WORKERS' COMPENSATION BACKGROUND Currently, mental stress must be 'traumatic' to be eligible for benefts. No such requirement exists for physical injuries.

• Cover