Important amendments relating to chronic stress are made to the Workplace Safety and Insurance Act (WSIA) in Bill 127, which comes into force January 1, 2018 for workplace incidents occurring on or after that date. As of January 1, 2018, s. 13 of the WSIA is amended as follows:
4. Subject to subsection (5) a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.
5. A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
Bill 127 is significantly less restrictive than the current statutory regime, which allows for benefits only where the mental stress is “an acute reaction to a sudden and unexpected traumatic event” in the course of their employment.
The WSIB Ontario Operational Policy on Chronic Mental Stress provides some insight into the application of the Bill 127 amendments. It indicates that a worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment.
A work-related stressor is meant to include multiple work-related stressors, as well as a cumulative series of work-related stressors. However, the event(s) alleged to have caused chronic mental stress must be identifiable by a WSIB decision maker, through information or knowledge provided by co-workers, supervisory staff, or others. Determination of the “substantial” nature of the stressor will generally involve an analysis to determine whether it is excessive in intensity and/or duration compared with the normal pressures and tensions experienced by workers in similar circumstances.
Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally typical features of normal employment, unless the conflict amounts to workplace harassment, or results in conduct that a reasonable person would perceive as egregious or abusive.
Employees considering a legal claim in relation to workplace mental health injuries arising on or after January 1, 2018 should recognize that while the right to sue for breach of contract will continue to exist, an employee who wishes to sue an employer or co-worker in relation to workplace mental health injuries may be restricted from doing so due to the restrictions under section 28 of the WSIA.
The take away: Bill 127 amendments to WSIA, Bill 132 amendments to the OHSA regarding workplace harassment, and the evolving human rights law around mental health conditions, are reasons for employers to give due consideration to mental health in the workplace, including primary prevention, encouragement for employee disclosure, and sustainable return to work options.
For more information on Bill 127 amendments and the WSIB Ontario Operational Policy Re: Chronic Mental Stress (Accidents on or After January 1, 2018), see http://www.wsib.on.ca