Tips for employers concerned about Ontario’s new workers’ comp policy
When it comes to the potential for employee claims for chronic mental stress, there are a few important steps employers should be taking, according to Asha Rampersad, a lawyer at Bernardi Human Resource Law in Toronto.
The new Chronic Mental Stress Policy from Ontario’s Workplace Safety and Insurance Board (WSIB) opens the door for claims related to bullying and harassment, humiliating events, abusive or threatening interpersonal conflict, a lack of managerial support or workload issues, said Rampersad, speaking at a conference on mental stress claims in Mississauga, Ont., on Nov. 6.
Employers should be documenting everything they’re doing to support employees, making sure the different stakeholders are talking to each other, and focusing on performance management, she said.
“The impact on your organization will likely be you can expect an increase in your premiums, and it’ll be increasingly important to take a proactive approach to how you’re dealing with this.”
One of the first challenges for employers is deciding when they have a duty to report, said Rampersad. It may be the employee who fills out a form or it may be the employer, having noticed issues around an employee’s behaviour, such as lost time.
But there’s no entitlement to compensation if the stress is related to management actions such as discipline, demotions, terminations or transfers, or changes in work hours or productivity expectations.
“If you know right off the bat this is a performance issue, this is not harassment — because this is happening a lot, too — and you want to make those submissions, it’s very, very important that sometimes you take the initiative and the employer make its submission in support of their claim,” she said.
The case manager will want thorough documentation such as copies of notes, investigation reports and executive summaries, said Rampersad.
“It’s becoming increasingly more important to document what you’re doing because whether you’re going into a grievance arbitration or you’re going to a human rights litigation proceeding or court action, the first thing they’re going to ask you for is what you can prove, what is documented, what has been done.”
The more information an employer can provide, the better, said Sal Cavaricci, director of the mental stress injuries program at the WSIB.
“The documentary evidence is the most critical so if the employer has already conducted an harassment investigation or workplace investigation, we will request that. If it’s ongoing, we may wait,” he said, or WSIB may do its own investigation.
“A lot of employers and worker groups may feel we’re taking our time, maybe longer than we’d like, but we feel it’s important to collect the right amount of information to make an informed decision,” said Cavaricci, speaking at the conference hosted by AGS Rehab Solutions and Hale Health and Safety Solutions.
Another area employers should focus on is performance management, said Rampersad. For example, an employee is not being harassed just because he doesn’t like his performance review.
“There’s no entitlement to chronic mental stress if the employer can show they engaged in reasonable action, it was related to normal employment decisions,” she said.
“The spotlight is not just on the quality of your workplace investigation, but how are you performance managing? We’re seeing tons of workplace investigations because front-line supervisors are not handling performance discussions in a constructive manner.”
And employers should note that even if a claim is denied by an adjudicator, that does not mean the employer’s duties end there, she said.
“Just because there’s been a denial of benefits… does not necessarily mean you’ve exhausted your duty to accommodate… and you may also have to consider other forms of medical documentation that an employee gives to you.”
Working together for a better culture
One of the challenges for employers is the division of labour, as some organizations may have a labour relations group, an HR department and an occupational health division, said Rampersad.
“A lot of times, the three are not connecting or discussing what’s happening,” she said. “There needs to be greater dialogue now because if you’re going to be dealing with chronic mental stress, what we’re seeing is that the left hand doesn’t really know what the right hand is doing in terms of managing these claims.”
And when it comes to prevention, it’s important for employers to look at how they are treating employees, meaning how they deal with complaints, how long that process takes, what workloads people are facing or what support services are provided, said Rampersad.
“All those things need to be considered because now you could be facing liability on a number of fronts, whether it’s occupational health and safety, WSIB, human rights — what have you.”
Focusing on culture has become very important when it comes to mental health, according to Ron Kelusky, chief prevention officer at the Ontario Ministry of Labour, who also spoke at the conference.
“Managing stress or managing mental health in the workplace, there are similar parallels to how we should properly manage physical health and safety.”
Today, many supervisors no longer interact closely with employees, he said.
And yet when people are asked about where they want to get information on health and safety or wellness, research has shown the highest percentage, from all age groups, prefer to hear from their supervisor — not from apps or social media.
“What organizations need to push for is an environment where Bob feels very comfortable coming forward regarding his situation, and have a relationship with someone — whether it’s a peer, whether it’s a supervisor, whether it’s a boss — and be able to say, ‘I’m having real challenges here.’ If we can get to that utopian state, I think we’ll be able to deal with things,” said Kelusky.
Another major stressor for people is employers that say they have a policy, but never follow it, he said.
“(People) feel that they’re powerless, they have nowhere to go. If they make a complaint, who’s going to listen…? Or somebody says, ‘Just go to the policies.’ So, we’ve lost that general ability to communicate; we’re so busy, we tend to rely on policies.”
Defining chronic mental stress
Chronic mental stress must be “predominantly caused by a substantial work-related stressor,” according to the Workplace Safety and Insurance Board (WSIB), “and involve identifiable stressful events that are not traumatic, but are substantial, which means they are excessive in intensity or duration compared with the normal pressures and tensions experienced by other people working in similar circumstances.”
“The injuring process is a little bit different in the sense that we are looking for a substantial, work-related stressor, so something that’s beyond the usual… pressures of daily work,” said Sal Cavaricci, director of mental stress injuries program at the WSIB.
“This could include bullying or harassment; it does not include necessarily interpersonal conflict, unless the behaviour rises to the level of being abusive or egregious or harassing,” he said. “It doesn’t have to be the only factor but it has to be the predominant cause of that particular diagnosis, and that is an adjudicated decision.”
People with chronic mental stress must meet three conditions to be entitled to WSIB benefits:
• An appropriate regulated health professional, such as a family physician, provides a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders (DSM).
• The person has experienced a substantial work-related stressor, such as workplace bullying or harassment.
• The substantial work-related stressor was the predominant cause of the appropriately diagnosed mental stress injury.
Pre-existing and existing conditions are taken into account, said Cavaricci.
“The question…. is what was the impact of that pre-existing condition on the person’s work function up until the time they actually stopped working? If there’s evidence that they were functioning with no disciplinary issues, no productivity issues — basically no one knew that they had the condition — you may find that it doesn’t have a significant impact.”
And if a job is already considered to have psychological hazards, that’s a factor that’s considered, he said. “We don’t have a scoring system… (but) we do into take into account what an employer has done, and we do look at what the typical pressures are.”
When it comes to deciphering between work stress and life stresses, much of that relies on the medical information, he said.
“If you’re talking about a first responder… presumptive legislation takes away a lot of that discretion on the part of the decision-maker. It’s a challenge but it’s a legislative challenge. I don’t want to make it sound too formulaic, but it is. So, if you have that first responder that brings ‘life to the table’ and they have that diagnosis and it’s all the criteria are met and there’s nothing to rebut to say that the life factors are more significant to the establishment of that diagnosis, it’d be very (hard) to establish a rebuttal or to deny it.”