What are the most recent changes in employment legislation regarding work-related stress?

Stuart Rudner
Question: What are the most recent changes in employment legislation regarding work-related stress?

Answer: In recent years, some provinces have explicitly recognized that work-related stress, in extreme circumstances, is deserving of coverage under the applicable workplace safety legislation. Such provinces distinguish the “usual” stress that accompanies a job from more serious circumstances.

Workers who sustain personal injury by accident arising in the course of their employment are entitled to benefits under the worker’s insurance plan. Generally, a worker would not be entitled to benefits under the insurance plan for mental stress. However, some provinces have adapted the legislation to carve out an exception and provide benefits for mental stress “that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment”.

The legislation is triggered by a very serious traumatic event. According to the Ontario Workplace Safety and Insurance Board’s operational policy, a “traumatic event” may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member or others. In all cases, the event must arise out of and occur in the course of the worker’s employment and be clearly and precisely identifiable, objectively traumatic and unexpected in the normal or daily course of the worker’s employment or work environment.

Examples of “sudden and unexpected traumatic events” include:

•witnessing a fatality or a horrific accident;

•witnessing or being the object of an armed robbery;

•witnessing or being the object of a hostage-taking;

•being the object of physical violence;

•being the object of death threats;

•being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others;

•being the object of harassment that includes physical violence or threats of physical violence;

•being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation.

The worker must have suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individuals. In addition the worker must have had an “acute reaction” to the traumatic event.

An acute reaction is a significant or severe reaction that results in a psychiatric or psychological response which is fairly immediate. Workers who develop mental stress gradually over time due to general workplace conditions are not entitled to benefits.

The legislation expressly excludes entitlement to benefits for traumatic mental stress that is due to the employer’s decisions or actions that are part of the worker’s employment. These may include: terminations; demotions; transfers; discipline; changes in working hours; and changes in productivity expectations.

Workers would be entitled to benefits, however, for traumatic mental stress due to an employer’s decisions or actions that are part of the worker’s employment that meet the acute traumatic event definitions, such as violence or threats of violence.

Stuart Rudner practices commercial ¬litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672
or by e-mail at [email protected]. Address
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