A proposal to redefine mental stress in the workplace has Ontario employers concerned they could be facing big compensation claims. This comes at a time when there is protracted debate over how responsible employers are for the mental health of their employees.
A new policy drafted by Ontario’s Workplace, Safety and Insurance Board (WSIB) proposes paying benefits for chronic mental stress caused by ongoing harassment in the workplace.
“Legislation clearly sets out that we don’t recognize stress through your day-to-day occupation,” says Perry Jensen, WSIB senior officer, external relations. “We’re trying to find out if there is some way we can redefine what traumatic stress is.”
But Sherri Helmka, executive director of the Ontario-based Employers’ Advocacy Council, says the proposal is one-sided. She says the board has grossly underestimated the cost of mental stress.
“The board anticipates maybe 10 to 20 claims a year, we’re guessing that it will be more like 5,000 to 10,000 claims that they’re going to get in a year...we just don’t feel that Ontario businesses can afford this.”
The Workplace Safety and Insurance Act, as of now, is unclear as to when workers can claim benefits for stress on the job. The board says it needs to revise its mental stress policy so it addresses the cumulative effects of traumatic workplace harassment and where there are a series of traumatic events, Jensen says.
“We’re investigating whether the old definition is good enough because that definition only deals with one traumatic event, not a series of events.”
The current policy only considers mental stress claims when there has been an “acute reaction to a sudden and unexpected traumatic event.” The more clarified version of the act, proposed by the board, gives employees more leverage to claim mental stress on the job and have that claim accepted. With the new guidelines, workers will be entitled to benefits if they are a witness to a shocking event that has happened to someone else, if they are harassed or threatened, or if there is continuous trauma that causes the worker to have a nervous breakdown.
A big problem with the policy, according to Richard Anstruther, a lawyer for the firm Stringer, Brisbin, Humphrey, is the way in which the board will determine a mental stress claim. The draft states that, “it will accept the claim without requiring a recognized psychiatric diagnosis,” and a health-care professional can confirm the worker’s symptoms as mental stress.
“This says you can get a stress claim supported by evidence of someone who is not a doctor and without that person having to provide a diagnosis, which is completely ridiculous.”
Helmka says this will be hard on health-care professionals who will have to confirm a condition undefined by the policy.
“One general practitioner said that mental stress as a diagnosis isn’t even a recognized diagnostic classification...they’ll be placing health-care professionals into a tough position of having to make a call on whether the disability is related to stress at the workplace.”
However, there is evidence that continuous harassment can indeed lead to excessive mental stress. In March 2000, the Workplace Safety and Insurance Appeals Tribunal directed the board to award compensation to a former female prison guard who worked in a federal penitentiary and suffered from workplace stress caused by harassment.
Support for this claim included her being directed to perform strip searches on male prisoners, while male colleagues looked on and made degrading remarks. She was also placed in dangerous situations with very little support or training from male co-workers. When she started to take numerous sick days to deal with the stress, her superiors reprimanded her each time she returned to work. She eventually stopped working altogether, and was diagnosed with post-traumatic stress disorder. The tribunal made the decision in her favour based on the fact that “her psychologically hostile environment was a significant factor contributing to her serious disability.”
Jensen says this case is one of the reasons they decided to revisit the current legislation.
“It was something that was brought to our attention, but there are other factors that have made us think that maybe its time to look at it (again).”
Anstruther says the WSIB should look at the drafted proposal a little harder. He says there are many gaps that need to be filled before they finalize the policy, and these gaps can create problems for employers. The employer will have double liability and the employee will get double compensation which was not the case before, he says.
“What we have now is a policy that says, ‘If you get harassed in the workplace, you can get workers’ compensation benefits for it, but the employer is not protected from the human rights complaint that would normally arise out of it.
“So, the employer is not getting what it paid for in funding the workers’ compensation system and even worse it provides the employee with an opportunity to double dip...get benefits from the workers’ compensation board, as well as get an award for damages from the human rights tribunal.”
And there is a substantial difference between what the board can do and the human rights tribunal can do, according to Anstruther. The board can pay the worker lost wage benefits, but it can’t order what is called “systemic remedies” — designed to deal with the cause of harassment — such as diversity training.
“This policy is a system designed to take benefits without actually addressing the problem in the workplace and that’s not a very good solution.”
Helmka agrees.
“Harassment is addressed through the Ontario Human Rights Commission and that’s where it needs to stay. It should not be in this policy at all.” The council, with support from numerous employers, has already drafted and sent a response to the board expressing concern over the policy.
“We need to sit down and talk about this and I’m talking about all the stakeholders, if we’re going to do this, then let’s do it right,” says Helmka.
The board has completed its consultation process and is now reviewing all received public submissions.
A new policy drafted by Ontario’s Workplace, Safety and Insurance Board (WSIB) proposes paying benefits for chronic mental stress caused by ongoing harassment in the workplace.
“Legislation clearly sets out that we don’t recognize stress through your day-to-day occupation,” says Perry Jensen, WSIB senior officer, external relations. “We’re trying to find out if there is some way we can redefine what traumatic stress is.”
But Sherri Helmka, executive director of the Ontario-based Employers’ Advocacy Council, says the proposal is one-sided. She says the board has grossly underestimated the cost of mental stress.
“The board anticipates maybe 10 to 20 claims a year, we’re guessing that it will be more like 5,000 to 10,000 claims that they’re going to get in a year...we just don’t feel that Ontario businesses can afford this.”
The Workplace Safety and Insurance Act, as of now, is unclear as to when workers can claim benefits for stress on the job. The board says it needs to revise its mental stress policy so it addresses the cumulative effects of traumatic workplace harassment and where there are a series of traumatic events, Jensen says.
“We’re investigating whether the old definition is good enough because that definition only deals with one traumatic event, not a series of events.”
The current policy only considers mental stress claims when there has been an “acute reaction to a sudden and unexpected traumatic event.” The more clarified version of the act, proposed by the board, gives employees more leverage to claim mental stress on the job and have that claim accepted. With the new guidelines, workers will be entitled to benefits if they are a witness to a shocking event that has happened to someone else, if they are harassed or threatened, or if there is continuous trauma that causes the worker to have a nervous breakdown.
A big problem with the policy, according to Richard Anstruther, a lawyer for the firm Stringer, Brisbin, Humphrey, is the way in which the board will determine a mental stress claim. The draft states that, “it will accept the claim without requiring a recognized psychiatric diagnosis,” and a health-care professional can confirm the worker’s symptoms as mental stress.
“This says you can get a stress claim supported by evidence of someone who is not a doctor and without that person having to provide a diagnosis, which is completely ridiculous.”
Helmka says this will be hard on health-care professionals who will have to confirm a condition undefined by the policy.
“One general practitioner said that mental stress as a diagnosis isn’t even a recognized diagnostic classification...they’ll be placing health-care professionals into a tough position of having to make a call on whether the disability is related to stress at the workplace.”
However, there is evidence that continuous harassment can indeed lead to excessive mental stress. In March 2000, the Workplace Safety and Insurance Appeals Tribunal directed the board to award compensation to a former female prison guard who worked in a federal penitentiary and suffered from workplace stress caused by harassment.
Support for this claim included her being directed to perform strip searches on male prisoners, while male colleagues looked on and made degrading remarks. She was also placed in dangerous situations with very little support or training from male co-workers. When she started to take numerous sick days to deal with the stress, her superiors reprimanded her each time she returned to work. She eventually stopped working altogether, and was diagnosed with post-traumatic stress disorder. The tribunal made the decision in her favour based on the fact that “her psychologically hostile environment was a significant factor contributing to her serious disability.”
Jensen says this case is one of the reasons they decided to revisit the current legislation.
“It was something that was brought to our attention, but there are other factors that have made us think that maybe its time to look at it (again).”
Anstruther says the WSIB should look at the drafted proposal a little harder. He says there are many gaps that need to be filled before they finalize the policy, and these gaps can create problems for employers. The employer will have double liability and the employee will get double compensation which was not the case before, he says.
“What we have now is a policy that says, ‘If you get harassed in the workplace, you can get workers’ compensation benefits for it, but the employer is not protected from the human rights complaint that would normally arise out of it.
“So, the employer is not getting what it paid for in funding the workers’ compensation system and even worse it provides the employee with an opportunity to double dip...get benefits from the workers’ compensation board, as well as get an award for damages from the human rights tribunal.”
And there is a substantial difference between what the board can do and the human rights tribunal can do, according to Anstruther. The board can pay the worker lost wage benefits, but it can’t order what is called “systemic remedies” — designed to deal with the cause of harassment — such as diversity training.
“This policy is a system designed to take benefits without actually addressing the problem in the workplace and that’s not a very good solution.”
Helmka agrees.
“Harassment is addressed through the Ontario Human Rights Commission and that’s where it needs to stay. It should not be in this policy at all.” The council, with support from numerous employers, has already drafted and sent a response to the board expressing concern over the policy.
“We need to sit down and talk about this and I’m talking about all the stakeholders, if we’re going to do this, then let’s do it right,” says Helmka.
The board has completed its consultation process and is now reviewing all received public submissions.
