New Ontario legislation expanding benefits eligibility to include more mental health injuries in 2018
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.
Preventing 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 Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, received Royal Assent. Bill 132 included significant amendments to the Occupational Health and Safety Act (OHSA), which 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 Amendment 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
The 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. The Ontario legislature passed Bill 127 in May 2017. Among the changes included in Bill 127 are amendments to the 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/or chronic work-related mental stress.
Under the current WSIA, employees may receive WSIB benefits for mental stress only if it is traumatic, 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 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.
The 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
The current requirement that mental stress be “traumatic” constitutes a high threshold for employees to prove entitlement to WSIB benefits for mental stress. In comparison, there are relatively few limitations on entitlement to WSIB benefits for physical injuries. As a result, significant differences exist between the WSIB’s treatment of physical and mental injuries.
In 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 held that those provisions violate the right to equality under Section 15 of The Canadian Charter of Rights and Freedoms, because 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 to the WSIA will compel decision-makers to treat mental 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 WSIA amendments, the WSIB has issued an Operational Policy on work-related chronic mental stress. The WSIB has also updated its traumatic mental stress policy to clearly distinguishes between traumatic and chronic mental stress. The policy on work-related chronic mental stress 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.” Workplace harassment, which includes workplace bullying, will generally be classified as “substantial work-related stressors.” However, interpersonal 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 harassment or result in conduct that a reasonable person would consider egregious or abusive.
The policy confirms the exception set out in Bill 127 that no benefits for chronic mental stress will be available when the mental stress arises out of employers’ employment-related decisions and actions, such as demotions, terminations, 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 policy provides that the employee will generally be entitled to benefits for the mental stress as long as the work-related stressor is the predominant cause. The work-related stressor can be considered the predominant cause of the mental stress injury even if it may be outweighed by all of the other stressors when combined.
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 impact of stress claims
Bill 127 is not retroactive, despite that Decision No. 2157/09 recognised 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. Therefore, employers will not be liable for any incidences of chronic mental stress that arose prior to Jan. 1, 2018. Unlike the retroactively 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 entitlements. 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 mental 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 situations likely to cause employees chronic mental 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 occurrence of the types of inappropriate behaviour 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 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 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 employees 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 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 firstname.lastname@example.org. Joel was co-counsel for the employer in the case discussed above.