Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | November 2017 | News 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 Occupa- tional Health and Safety Amend- ment Act (Violence and Harass- ment in the Workplace), which primarily addressed workplace violence but left employees with minimal substantive protections against workplace harassment. Including chronic mental stress for benefits The government of Ontario has continued its trend of in- creasing protections against workplace harassment and vio- lence with Bill 127, the Stron- ger, Healthier Ontario Act (Budget Measures), 2017. The Ontario legislature passed Bill 127 in May 2017. Among the changes included in the bill are amendments to the Ontario Workplace Safety and Insur- ance 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 trau- matic and chronic work-related mental stress. Under the current WSIA, employees may receive benefits for mental stress only if it is trau- matic, meaning that their mental health injuries resulted from an acute reaction 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 non-traumatic, such as being subjected to humiliating jokes, demeaning conduct, or persistent criticism over a long period of time. The Bill 127 amendments to the WSIA that pertain to chronic mental stress come into force on Jan. 1, 2018. Differential treatment The current requirement that mental stress be "traumatic" constitutes a high threshold for employees to prove entitlement to 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 treat- ment of physical and mental in- juries. In its 2014 Decision No. 2157/09, the Ontario Work- place Safety and Insurance Ap- peals Tribunal held that the provisions of the WSIA covering mental stress are unconstitu- tional. Specifically, the tribunal found that those provisions vio- late the right to equality under s. 15 of The Canadian Charter of Rights and Freedoms because workplace mental health inju- ries are treated differently from physical injuries. Although the tribunal's decision was widely recognized as changing the landscape of workers' compen- sation law with regards to men- tal stress, the WSIB has since largely continued to decide these matters as before, on the basis of the WSIA provisions that were found unconstitutional. Begin- ning in 2018, however, the Bill 127 amendments to the WSIA will compel decision-makers to treat mental stress injuries ac- cording to the principles laid out by the tribunal. Policy on 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 be- tween traumatic and chronic mental stress. The Draft Policy entitles employees to WSIB ben- efits for chronic mental stress if the stress is caused by a "sub- stantial work-related stressor," which must be "excessive in in- tensity and/or duration in com- parison to the normal pressures and tensions experienced by workers in similar circumstanc- es." Workplace harassment and workplace bullying are classi- fied as "substantial work-related stressors." However, interper- sonal conflicts between a worker and supervisors, co-workers, or customers will not generally be considered "substantial work- related stressors," unless they rise to the level of bullying or ha- rassment or result in threatening or abusive behaviour. The Draft Policy confirms the exception set out in Bill 127 that no benefits for traumatic or chronic mental stress will be available when the mental stress arises out of employers' em- ployment-related decisions and actions, such as demotions, ter- minations, transfers, discipline, and changes in working hours or productivity expectations. Where a worker's mental stress arose from both the employer's employment-related decisions 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 men- tal stress as long as the work- related stressor is a significant contributing cause. The WSIB is currently consid- ering stakeholder feedback and finalizing the Draft Policy. The policy will come into force on Jan. 1, 2018, simultaneously with the Bill 127 amendments, 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 — de- spite that Decision No. 2157/09 recognized that mental and physical injuries should be treated in the same manner — and the WSIB's decisions in the three years since then, as well as its earlier decisions, have not followed this principle. There- fore, employers will not be liable for any incidences of chronic mental stress that arose prior to Jan. 1, 2018. Unlike the retroac- tively 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 de- termine 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 for- ward are likely to increase some employers' WSIB premiums. Notwithstanding the exemp- tions for employment-related actions and decisions, employ- ers should take care to proac- tively monitor their workplaces for situations that could lead to employees experiencing mental stress in the workplace. To this end, the harassment policies and procedures that employ- ers introduced to comply with their new OHSA obligations under Bill 132 will help employ- ers uncover and minimize situ- ations likely to cause employees chronic mental stress. Further- more, measures taken to clarify conduct expectations to every- one in the workplace as part of training under Bill 132 will likely similarly reduce the occurrence of the types of inappropriate be- haviour likely to lead to chronic mental stress, and thereby limit WSIB accident costs related to chronic mental stress. The treatment of mental health issues under the Bill 127 amendments to the WSIA sig- nificantly 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 harass- ment issues will receive a triple benefit: increased productivity and attendance from employees, avoidance of fines and penalties for failure to comply with the OHSA's new Bill 132 harassment obligations, and minimizing new WSIB claims costs for em- ployees suffering from chronic mental stress. For more information see: • Decision No. 2157/09, 2014 CarswellOnt 6239 (Ont. Workplace Safety & Insurance Appeals Trib.). Joel Smith is a lawyer with Wil- liams HR Law in Markham, Ont., where he practices man- agement-side labour, employ- ment, 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. Stressing < pg. 1 Treating mental injuries differently unconstitutional

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