January 1, 2018 was a banner day for employee’s rights and protections in Ontario.

In addition to changes to the Employment Standards Act that came into force on January 1 (see our previous blog post here), a new entitlement for benefits under the Workplace Safety and Insurance Act, 1997 (the WSIA) for “chronic or traumatic mental stress arising out of and in the course of the worker’s employment” also came into effect that day.

An entitlement under the WSIA simply means that a worker who meets those criteria is entitled to benefits under the Workplace Safety and Insurance Board (WSIB) insurance plan. So, for example, the act states that a “worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.”

Previously, the WSIA provided that a worker suffering from mental stress was not entitled to benefits unless the stress was “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment” – far too high a bar for many workers. As an example, prior to January 1, an employee might have been entitled to benefits if he or she experienced mental stress because they had been involved in or witnessed a horrific accident in the course of their employment, but not if they experienced mental stress due to an ongoing course of events, such as persistent harassment. Under the new entitlement the later scenario may be covered; the WSIA may provide benefits for mental stress resulting from an ongoing course of events.

However, not every case of work‑related mental stress will result in an employee obtaining benefits. According to an FAQ statement released by the WSIB, coverage will be extended to “work‑related chronic mental stress [that] is caused by a substantial work‑related stressor or series of stressors,” and that for a work‑related stressor to be considered to be “substantial” it would have to be “excessive in intensity and/or duration compared with the normal pressures and tensions experienced by people in similar circumstances.”

This statement does not mirror the language of the WSIA as it has been amended, but instead appears to be an attempt by the WSIB to limit the effect of the new provisions. Given the deference that courts have typically given to decisions of the WSIB, there is a legitimate concern that there will not be a real opportunity to challenge this attempt by the WSIB to give the amendments a narrower application than the plain language of the amendments would suggest. Based on the WSIB FAQ statement, it seems that the WSIB will not apply the new coverage for workplace‑related mental stress to provide benefits for mental stress that arises in an inherently high pressure job.

Another limitation to the new coverage that is actually set out in the amendments is that coverage will not extend to mental stress caused by an employer’s legitimate workplace functions, such as demotions, transfers or disciplinary steps, subject to this important qualification:

It appears that the new coverage will be applied to provide benefits for mental stress arising as a result of workplace harassment or bullying.  While an employer’s legitimate workplace functions would not typically support a claim for benefits, they are sometimes exercised in a manner that goes beyond what is reasonable, and cross the line into harassment or bullying.  Those acts would be considered to be substantial work‑related stressors that would support a claim for benefits under the new provisions, if the employee could demonstrate that he or she had suffered chronic mental stress as a result.

This development dovetails with other measures that are meant to protect employees from harassment or bullying in the workplace, such as the requirement under the Occupational Health and Safety Act (the OHSA) that employers develop policies (and a program to implement said policies) to deal with workplace violence and harassment[1]. It is now even more important for employers to have appropriate policies in place to deal with harassment and bullying in the workplace, and if complaints are made, to ensure that those policies are followed.

At Iler Campbell LLP, we are well positioned to help organizations and businesses deal with all aspects of such issues. We can help with everything from developing appropriate policies and programs to deal with workplace harassment and bullying, conducting investigations and providing advice regarding how to deal with complaints by your employees, to representing your organization in any disputes that arise from any such issues. We would be honoured to assist your organization with such matters.

 

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[1] Additional measures include the Ontario Human Rights Code’s prohibition against workplace harassment related to certain protected grounds and the Ministry of Labour’s publication of a Code of Conduct in August, 2016 that was meant to help employers to understand and meet their obligations under the OHSA better.

Filed in: Employment Law

Tags: workplace harassment, Workplace Safety and Insurance Act, Workplace stress, WSIB