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Entitlement to chronic mental stress BENEFIT to expand effective Jan. 1, 2018

By Laura Williams

The Ontario government’s budget implementation Bill 127, the Stronger, Healthier Ontario Act (Budget Measures), 2017, amends numerous pieces of legislation, including the Workplace Safety and Insurance Act, 1997 (WSIA). The most significant Bill 127

amendments to the WSIA expand Workplace Safety and Insurance Board (WSIB) benefit entitlement for mental health injuries resulting from chronic work-related mental stress. This expansion, which will have a dramatic impact on employers that participate in the WSIB insurance scheme, will come into effect on Jan. 1, 2018.

In passing these WSIA amendments, the government may have fundamentally impacted workers’ rights to sue for harassment and/or bullying experienced in the workplace. As such, the legislation could help mitigate employer liability to civil claims related to harassment, such as claims for constructive dismissal related to alleged harassment at work.

Before delving deeper into Bill 127’s workplace implications, it is instructive to explore some of the legal context behind the legislation and the changes it introduced.

As HR professionals understand, Ontario’s workers’ compensation legislation provides a no-fault insurance scheme whereby workers may claim benefits for injuries or conditions caused by a workplace accident. In exchange for these benefits, the WSIA extinguishes certain rights of action, limiting the ability of workers who are employed by employers with WSIB coverage to sue employers for compensable injuries.

This means workers employed by an employer with WSIB coverage (or those workers’ survivors) are not permitted to sue the employer or any director, executive officer or other worker of the employer with respect to an injury or disease that entitles the worker to WSIB benefits.

The impetus for the expansion of WSIB benefits to chronic mental stress injuries was a 2014 decision by the Workplace Safety and Insurance Appeals Tribunal (WSIAT), Decision No. 2157/09, which held that the WSIA’s provisions pertaining to mental health injuries violated workers’ equality rights guaranteed by the Canadian Charter of Rights and Freedoms. The WSIAT held that those provisions were unconstitutional because the WSIA was significantly more generous in providing entitlement to benefits for physical injuries than for mental injuries. Despite this decision, the WSIB has continued to adjudicate WSIB claims for mental stress on the basis of these unconstitutional provisions. This led to the Ontario legislature, through Bill 127, to amend the WSIA to broaden WSIB benefit entitlements for mental stress to bring mental health-related entitlements more in line with those for physical injuries.

When the WSIA amendments come into force on Jan. 1, 2018, workers will maintain their entitlement to benefits for traumatic mental stress, which is limited to mental stress arising from an acute reaction to a single sudden or unexpected event. However, entitlement to WSIB benefits for chronic mental stress will be expanded.

What, exactly, will constitute work-related chronic mental stress for entitlement purposes? The WSIB has created a Draft Policy on work-related chronic mental stress, which defines chronic mental stress as a condition caused by a substantial work-related stressor, such as being subjected to workplace harassment and bullying that is excessive in duration and/or intensity. Notably, the Draft Policy confirms that workers will not be entitled to WSIB benefits for mental stress caused by the employer’s employment-related decisions or actions. This includes changes to the work to be performed, disciplining the worker or terminating the employment relationship.

By compensating workers for work-related chronic mental stress, the WSIA may limit their right to sue for workplace harassment and bullying. Specifically, workers may be limited in their ability to commence a variety of civil actions against their employers, including those for damages for the tort of harassment (which includes workplace harassment and is an independent cause of action in Ontario), or for the tort of intentional infliction of mental suffering. Workers may also be limited in their ability to sue for constructive dismissal due to a poisonous work environment, or for discrimination that results in chronic mental stress for which the worker will now be entitled to WSIB benefits.

The extent to which Bill 127 limits workers’ rights to sue for harassment and/or bullying that causes chronic mental stress remains to be seen. However, for employers, this could translate into a potential reduction in the risk of legal action by employees who allege harassment and chronic mental stress in the workplace – even if that stress can be directly connected to workplace conduct. That said, by virtue of the employer obligations under the WSIA, compensable chronic mental stress claims will result in involvement of the WSIB in efforts to return covered workers to work, to the extent possible.

As is always recommended, being proactive and monitoring a workplace for situations that could increase employee mental stress is the best approach. Your organization’s workplace violence and harassment policies should be updated regularly to ensure compliance with obligations under Ontario’s Occupational Health and Safety Act (OHSA), and employees should be reminded of their own obligations as workers under the OHSA, which include an obligation to report health and safety hazards, such as workplace harassment, to the employer. This will help ensure employers become aware of conduct that may lead to chronic mental stress as early as possible so that you can take steps to address the alleged conduct before it results in compensable mental stress under the WSIA.

HR and management teams should also take steps to address potential areas of employee stress. Ensuring proper staffing levels, separating employees onto different teams when personality clashes become evident and providing constructive feedback are all effective tactics to help minimize common stressors. So, too, is providing adequate leadership training to help managers effectively provide direction and understand their obligations (and their workers’ entitlements) under key legislation such as the OHSA, Human Rights Code and WSIA.

Taking these relatively simple steps can deliver a host of benefits, including increased employee productivity and attendance, lower employee turnover, improved engagement, fewer WSIB claims from employees related to chronic mental stress and reduced exposure to fines and penalties resulting from non-compliance. n

Laura Williams is the founder and principle of Williams HR Law Professional Corporation and Williams HR Consulting, Inc.

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