Mental health in the workplace has increasingly become the focus of discussion for employers and lawmakers throughout Canada, and for good reason: The number of incidents of mental health problems amongst Canadians is staggering, and their impact on society, including workplaces, can be significant.
In any given year, one in five 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 disability leave for a mental illness is about double the cost of a leave for a physical illness, according 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.
The increased focus on mental health in the workplace has been accompanied by increased potential liability for employers when it comes to employees who suffer mental illness arising out of their duties. In particular, two recent developments in workers’ compensation law in Ontario have served to significantly 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 legislation), workers could only make a claim for benefits that resulted from a “sudden and unexpected traumatic event.”
The tribunal’s decision has opened the gates to benefit 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.
The second change that is likely to impact employers, although only those that employ first responders, is the introduction of Bill 163, Supporting Ontario’s First Responders Act (Post-Traumatic Stress Disorder), 2016. This legislation, which came into force in April, grants presumptive entitlement to all first responders who suffer from post-traumatic stress disorder (PTSD). While the presumption is rebuttable, practically speaking, it will be very difficult for employers of first responders to refute a claim brought by an employee who is diagnosed with PTSD.
Two significant challenges
The prevalence of mental health disorders combined with increased exposure for employers has created two rather significant challenges. The first 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, associated with accommodating and facilitating the return to work of employees suffering from mental health concerns. Accommodating employees returning from mental stress leave is particularly difficult as the restrictions and capabilities are often challenging to identify and can change depending on the prevailing circumstances.
Whereas an employee’s physical restrictions can be easy to identify, define and accommodate, mental restrictions are often invisible and difficult to pinpoint with any degree of certainty.
These concerns have led to employers using new methods of assessing their workplaces and facilitating the return to work and accommodation of employees who suffer from mental stress: Cognitive demands analysis and cognitive/psychological 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 duties 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 comprehensive CDA can provide an employer with a relatively clear picture of the cognitive 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 reducing 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 qualified assessor, such as a psychologist or neuropsychologist, and can provide objective measurement of an employee’s general learning ability, concentration and attention, visual perception and processing, information-processing, memory, 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 evaluation 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 difficult task, it is important for employers to have the information necessary to understand the particular employee’s unique needs and design an accommodation plan that is consistent with those needs. A CP-FAE is about obtaining that vital information.
Most disability management consultants should offer both CDA and CP-FAE services, 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 understanding 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 employment lawyer and co-chair of the firm’s workplace safety and insurance practice group. For more information, visit www.hicksmorley.com.
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