The Psychological Health and Safety in the Workplace – Prevention, promotion and guidance to staged implementation (the “Standard”) was released by the Mental Health Commission of Canada, the Bureau de Normalization du Québec and the Canadian Standards Association (“CSA”) on January 16, 2013.
The Standard provides employers with a framework to develop and sustain a psychologically healthy and safe workplace, through the identification and elimination of hazards in the workplace, the assessment and control of the risks in the workplace, the implementation of structures and practices to facilitate psychological health, and the fostering of a workplace culture that promotes psychological well-being.
Highlights of the Standard include:
- Implementing a Psychological Health and Safety Management System (PHSMS)
- Developing risk mitigation process
- Competence and training
- Protecting confidentiality and privacy rights
- Accountabilities for implementation
- Reporting and investigations process
- Monitoring and measurement
The Standard calls for a “psychological health and safety management system”, but provides few specifics. Presumably, the drafters intended workplace parties to craft a system compatible with their circumstances. For example, the Standard calls for collection of data regarding the workplace that includes the existence of policies and plans, job descriptions and analysis, and “administrative data” that includes a wide range of items such as absenteeism. But the Standard is vague on how the data is supposed to be analyzed and what is to be done with it.
Organizations are encouraged to use the data to establish measurable objectives and targets, but the Standard does not provide much specific guidance in that respect either. This is probably because accommodation of mental health disabilities is such an inherently fact specific undertaking that establishing “measurable objectives” will not assist in assessing a particular case.
The Standard next recommends that employers implement preventive and protective measures to address any identified hazards or risks. This should include providing resources to employees who have been suffering from mental health difficulties. We recommend that supervisory personnel also be provided with access to resources and training to better manage.
Significantly, the Standard does not impose any new duties on employers. ecause it is not referenced in any legislation, the Standard is effectively an accumulation of carefully prepared, non-binding recommendations. The Standard provides employers with best practices for proactively fostering well-being, and for addressing mental health issues in the workplace.
Of course, human rights tribunals, arbitrators and the courts may refer to the Standard when assessing the content of the duty to accommodate mental disabilities in the workplace. In other words, the Standard provides a summary of the steps an organization might have taken to address mental health accommodation before it reached the point of undue hardship.
The Standard’s proactive recommendations, i.e. recommendations to promote well-being and avoid or minimize mental health risks, are not relevant to an employer’s obligation to accommodate – which only arises once an employee presents with mental health disability.
In the authors’ view (borrowing from occupational health and safety parlance), the law is far from recognizing a free-standing due diligence obligation for employers to “take all precautions reasonable in the circumstances” to avoid workplace mental health risks. Given the complexity of the issues and considerations, in our view it would be completely unreasonable and unfair to burden employers with such responsibility.
Our non-binding recommendations
In light of this new Standard, employers should consider taking the following action:
- Review policies and programs and consider how mental health issues may be addressed
- Consider how past incidents and particular employees were dealt with and if your organization could have done better
- Assess the workplace for any mental health hazards (high stress, exposure to risks, high workload) and take appropriate action to mitigate these hazards
At the 2013 Employment Law Conference, employment lawyer Landon Young will provide you with guidance on what you should know about this Standard, including:
- A concise summary of the state of the law respecting workplace psychological health,
- A discussion of challenges raised by mental health issues in the workplace,
- An overview of what the courts are saying about related employer obligations and liability,
- In-depth analysis of the new CSA Psychological Health standard, and
- Strategies for integrating the CSA standard into existing workplace policies.
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