In May 2017, Bill 127, the Stronger, Healthier Ontario Act (Budget Measures), 2017 (“Bill 127”) was passed by the Ontario legislature bringing in a number of new changes which will be of interest to employers in the province. Among these changes are amendments to the Workplace Safety and Insurance Act (the “WSIA”) which will alter entitlements in various categories and will extend coverage to employees who suffer from chronic, work-related mental stress. This marks a departure from the previous entitlements for mental health injuries at work, whereby employees became entitled to WSIB benefits only if their mental stress resulted from an acute reaction to a sudden and unexpected event. In our view, this amendment to the WSIA is the most significant change ushered in by Bill 127.
Prior to the recent changes, the threshold which an employee would need to meet to be entitled to benefits for mental stress was quite high, as it was unclear what sorts of events might register as unexpected or what qualified as an acute reaction. In 2014, the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”) held in Decision No. 2157/09 that the provisions of the WSIA covering mental stress violated the right to equality under Section 15 of The Canadian Charter of Rights and Freedoms, because mental health injuries were treated differently than physical injuries under the WSIA. This decision was widely recognized as having changed the landscape in workers’ compensation law where mental stress was concerned, but in the intervening years the Workplace Safety Insurance Board (the “Board” or the “WSIB”) largely decided these matters as they always did. The new amendments brought in by Bill 127 will fill the gap and force decision makers to rule according to the principles laid out in Decision No. 2157/09.
What has Changed?
Given the fact that experts have estimated that one in two Canadians experience mental illness before the age of 40, these changes could have significant implications for employers. In addition to an anticipated rise in the number of WSIB claims related to mental health, it is likely that considerable time will be spent by WSIB decision makers defining the boundaries of WISB entitlement to benefits for chronic mental stress.
The Board has issued a draft Operational Policy (the “Draft Policy”) which includes information about the scope of chronic mental stress and what sorts of incidents may give rise to benefits. The Draft Policy provides that employees will be entitled to benefits for chronic mental stress is the stress is caused by a “substantial work-related stressor”, which is defined as a stressor that is “excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.” Chronic workplace harassment and bullying are listed as examples of “substantial work-related stressors” which would qualify an individual for WSIB benefits. Enduring interpersonal conflicts however, will not generally be considered “substantial work-related stressors,” unless they rise to the level of bullying or harassment. The Draft Policy also indicates that benefits for chronic mental stress will not be available when the mental stress arises out of work-related decisions made by employers, such as decisions related to demotions, terminations, transfers of location and changes in working hours. If the chronic mental stress is the result of employer actions which are not related to the work function, however, workers will be entitled to benefits. The Board has invited input on the Draft Policy through a consultation process which concludes July 7, 2017. More information about the consultation process, including how employers can provide feedback, can be found here.
The amendments, which come into force on January 1, 2018, are not retroactive and benefits will therefore only be provided to workers in relation to chronic mental stress suffered after that date.
Implications for Employers
Notwithstanding the exemptions, employers will have to be cautious about monitoring potential situations which might lead to the development of mental stress in the workplace. Taking a proactive approach to employee mental health is a good place to start. Providing resources for employees who may be starting to feel the beginnings of mental stress at work can help prevent conditions from becoming chronic and triggering the WSIB benefit entitlement. Compliance with the new Bill 132 obligations under the Occupational Health and Safety Act to investigate incidents and allegations of workplace harassment can help uncover and correct situations which might otherwise result in chronic mental stress. Employers should listen to their employees’ concerns and, where necessary, investigate any situations which might lead to problems down the road.
Bill 127 marks a departure from previous attitudes towards mental health which largely viewed the conditions as personal and unrelated to work. Mental health issues nonetheless cause substantial labour interruptions in Canada and account for millions of dollars in lost productivity. Employers who develop smart approaches for identifying, accommodating and resolving mental stress problems in the workplace will benefit both from increased productivity and by avoiding WSIB claims emanating from employees suffering from mental stress.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.