On May 17, 2017, Bill 127: Stronger, Healthier Ontario Act (Budget Measures), 2017, received Royal Assent. Schedule 33 of the Bill dealt with amendments to the Workplace Safety and Insurance Act, 1997 (“WSIA”).
The most noteworthy amendment is that, as of January 1, 2018, a worker will be entitled to benefits under the WSIA for “chronic or traumatic mental stress arising out of and in the course of the worker’s employment.”
Currently, the WSIA does not cover mental stress unless it is “for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment” or if it is post-traumatic stress disorder for only select categories of workers, such as paramedics, firefighters, and police offers, which is dealt with in another section of the WSIA.
These new amendments, however, do not apply to mental stress caused by the employer in relation to decisions or actions regarding the worker’s employment. For example, this could include: terminations, demotions, changes to work schedule, or transfers.
The WSIB has developed a draft policy on Traumatic or Chronic Mental Stress (Accidents on or After January 1, 2018) (“draft Policy”), which outlines the guidelines for benefit entitlements under these two areas.
According to the draft Policy, traumatic mental stress can be one or more events that arise out of and are in the course of the worker’s employment. They also must be clearly and precisely identifiable and objectively traumatic. Some examples are:
- Witnessing a fatality or horrific accident
- Witnessing or being the object of an armed robbery or a hostage-taking
- Being the object of physical violence
- Being the object of death threats
- Being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation
The draft Policy defines chronic mental stress as mental stress that is “caused by a substantial work-related stressor, including workplace bullying or harassment, arising out of and in the course of the worker’s employment.” The stressor would generally be considered substantial if it is “excessive in intensity and/or duration in comparison to the normal pressure and tensions experienced by workers in similar circumstances.”
WSIB also posted a helpful chart (reproduced below) with examples of situations that would likely be covered and what would not:
SITUATION |
LIKELY ENTITLED
|
| Traumatic Mental Stress Someone witnesses a horrific workplace accident. |
Yes |
| Chronic Mental Stress Someone is bullied by co-workers |
Yes |
| A teacher is the subject of demeaning comments from her vice-principal on a regular basis, quite often in front of her teaching colleagues and develops an anxiety disorder as a result. | Yes |
| A female housekeeping attendant is the subject of inappropriate and harassing comments from several male co-workers on a regular basis. She attempts to confront her co-workers but the harassment continues and in fact increases, and she develops a depression disorder as a result. | Yes |
| Excluded Someone’s shift schedule is changed by the employer. |
No |
| A general labourer has been observed on a number of occasions not adhering to company safety rules. He is eventually suspended by the employer due to continued safety violations. | No |
| After several extensions of a probationary account representative’s contract, he becomes upset with the employer’s decision not to offer him permanent employment. | No |
To receive WSIA entitlement for traumatic or chronic mental stress, there needs to be a diagnosis falling under the Diagnostic and Statistical Manual of Mental Disorders, which can include:
- Acute stress disorder
- Posttraumatic stress disorder
- Adjustment disorder
- An anxiety or depressive disorder
It is important to note that the information in the draft Policy is not final. Consultations were held on the draft Policy and the WSIB is currently considering the submissions.
Lessons for Employers
Employers should focus on limiting workplace stressors and ensure their workplace is free from any obvious scenarios that could cause chronic or traumatic mental stress – especially harassment and bullying. Employers should also ensure any investigations into any claims of harassment, bullying, and other stressors are well documented. Employers should also ensure that their practices, procedures and policies are strategically revised to keep up with this new legislation. Speaking to an Employment Law Lawyer can help you address any specific questions regarding the expanded WSIA entitlements and how it can affect you as an employer.
Lessons for Employees
Knowledge of your entitlements under WSIA can be of assistance if you are involved in a workplace accident or injury. Further, although the entitlements mentioned above only start on January 1, 2018, the events can be cumulative. Be sure to document any stressful events in the event it is required to support a diagnosis and WSIA entitlements after January 1, 2018. Speaking to an Employment Law Lawyer can help you determine your rights in regards to filing a WSIB claim and stressful situations in the workplace.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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