What you don’t know can hurt you: A new wave of WSIB claims for chronic mental stress

August 21, 2017 Rubin Thomlinson LLP Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources

On May 17, 2017, Bill 127 (Stronger, Healthier Ontario Act) received Royal Assent. The Bill modified the Workplace Safety and Insurance Act to allow WSIB benefits for workers who suffer from chronic mental stress in the course of their employment.

In advance of Bill 127 coming into force on January 1, 2018, the WSIB released a draft policy, as well as examples of events that may lead to claims of chronic mental stress for feedback from stakeholders. The WSIB will publish a final version of the policy before 2018.

According to the draft policy, a claim of chronic mental stress will require proof that a substantial workplace stressor significantly contributed to a diagnosis of a stress, anxiety or depression-related illness in the Diagnostic and Statistical Manual of Mental Disorders (DSM). “Chronic mental stress” itself is not defined in the Bill.

The draft policy mentions two substantial workplace stressors that may give rise to claims of chronic mental stress: harassment and bullying. Although employees and employers are familiar with claims related to these particular workplace stressors, this policy for claims of chronic mental stress arising from bullying and harassment poses a number of novel issues for employees who wish to bring them, and employers that wish to prevent them.

Here are two:

Proof of a substantial workplace stressor

The type of conduct that may constitute harassment and bullying is extremely broad, but the evaluation of whether it is a substantial workplace stressor is based on the perspective of the day-to-day stressors experienced by workers in similar circumstances. For example, an office worker who is frequently and abruptly told by his boss “I won’t look at your work until it’s absolutely perfect” and then, as a result, is diagnosed with depression, would have to prove that this behaviour was inappropriate and beyond the realm of typical workplace stressors. Since that comment may be either benign or routine from the perspective of his colleagues, the office worker may have no claim for chronic mental stress.

This is a departure from WSIB claim requirements for physical injuries. Workers who suffer from a physical injury do not have to prove that the cause of the injury was “substantial” or beyond the typical dangers of a workplace. WSIB benefits will be granted to any worker (clumsy or cautious) who is injured after a slip-and-fall in the workplace regardless of whether they slipped on a patch of invisible black ice or a bright orange traffic cone.

Preventing claims with risk assessments

Although the Occupational Health and Safety Act (“OHSA”) requires employers to investigate complaints of workplace harassment, it does not require employers to proactively assess the risk of actual or possible workplace harassment and bullying. If a worker experiences harassment and bullying and does not bring forward an internal complaint, an employer may be entirely unaware of this activity until they receive a WSIB claim for chronic mental stress. If these claims are successful, employers will face increased WSIB premiums. Even if these claims are not successful, it is costly and time-consuming to challenge them.

In preparation for a new wave of chronic mental stress claims, employers should be vigilant of workplace conduct that is, or could be interpreted as, harassment or bullying and proactively provide support to employees. Similar to the employer’s duty under the OHSA to conduct risk assessments for workplace violence, employers may find it useful to conduct a risk assessment for workplace harassment and bullying. These assessments are especially important for employers with workplaces that are inherently stressful, such as emergency healthcare and correctional facilities. Such assessments may involve surveys, focus groups or one-on-one interviews with employees to determine how they are experiencing stress at work. If incidents of bullying and harassment or other workplace stressors are uncovered, employers can institute a variety of measures to control such conduct and, hopefully, prevent claims of chronic mental stress.

By William Goldbloom

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Rubin Thomlinson LLP is a Toronto-based employment law firm dedicated to finding optimal legal solutions to challenging workplace issues. Rubin Thomlinson provides expert counsel to employees and employers on all legal issues pertaining to the workplace such as hiring, retaining and terminating employees; executive compensation and contracts; accommodation issues; and workplace human rights. Rubin Thomlinson is also considered a leading authority in the area of workplace harassment, and workplace investigations and reviews. Read more.