Canadian Occupational Safety

14 Canadian Occupational Safety www.cos-mag.com BY CHERYL A. EDWARDS AND SHANE D. TODD LEGAL CONNECTION TRAINING LEGAL CONNECTION T he National Standard for Psy- chological Health and Safety in the Workplace has now been released by the Canadian Standards Association, the Bureau de normali- sation du Québec and the Mental Health Commission of Canada (MHCC). e standard is intended to pro- mote a psychologically healthy and safe workplace, or one that "promotes workers' psychological well-being and actively works to prevent harm to workers' psychological health includ- ing in negligent or intentional ways." The standard springs from a growing awareness of the impact of mental health issues on workers and the workplace. If le unmanaged, these issues can lead to increased employee turnover, lower employee engagement and increased short- and long-term disability claims. e impact of mental health issues on lost productivity and employee turnover alone was estimated at $6.4 billion in 2011, and that number is predicted to grow to $16 billion by 2041, accord- ing to the MHCC. When mental health issues arise from bullying or harassment in the workplace, they can expose the employer to legal actions and sanctions through human rights complaints, civil actions, grievances and/or enforcement or reprisal com- plaints under occupational health and safety laws. ey can also lead to tragic incidences of suicide and incidents of physical violence in the workplace. Legal obligation e high cost, disruption and toll of mental health issues — and a series of high profi le incidents — have led to increasing calls for governments to use regulatory legislation to require employers to provide employees with psychologically safe workplaces. Some commentators, including researcher and mental health advo- cate Martin Shain of the University of Toronto, have suggested there already exists a legal obligation to provide a psychologically safe workplace. In his paper, Tracking the Perfect Legal Storm, Shain argues the existence of the duty to provide a psychologi- cally safe workplace is supported by trends in human rights, workers' compensation, tort, employment, labour, occupational health and safety and employment standards laws. We urge caution in accepting this particular view without question. A growing patchwork of law and potential sources of liability that touch on issues impacting workers' psychological health and safety do exist. Laws may compensate workers for psychological injuries they suff er at work, loss of employment and other losses. e possibility of liabil- ity may provide reasons for employers to take action. ey do not, however, establish a clear existing legal obliga- tion to provide a psychologically safe workplace. e majority of Canadian jurisdic- tions have now enacted workplace violence and harassment obligations within OHS legislation. Workplace violence obligations vary, but they are generally broad enough to encom- pass, among other things, threatened use of physical force, which includes statements or behaviour that could reasonably be interpreted as a threat of physical harm. Fewer jurisdictions have enacted workplace harassment provisions under OHS laws. e obli- gations under these OHS provisions are principally reactive and require the employer to respond to com- plaints, rather than to adopt proactive measures and procedures to prevent harassment (the OHS provisions in Saskatchewan's OHS Act do contain some express obligations for employ- ers to prevent harassment). Human rights legislation prohibits discrimination and, in many jurisdic- tions, harassment in the workplace on the basis of enumerated grounds. Employers may be found liable if employees are subjected to harass- ment on enumerated grounds in the workplace. However, these obliga- tions are only engaged in relation to specifi c enumerated grounds (race, sex and religion for example) under human rights legislation. us, they may not extend to all workers and all situations of harassment or bullying. In the tort law context, employers may be liable for intentional infl ic- tion of mental suff ering at work (a boss deliberately causing emotional harm due to callous behaviour or assault, for example). However, the courts have explicitly rejected the tort of negligent infl iction of mental suff ering in the employment rela- tionship and, accordingly, the courts have established that employers do not have a common law duty of care to protect workers from negligently infl icted psychological harm to work- ers at the workplace. Workers' compensation legisla- tion may compensate workers for stress or other psychological injuries that they suff er in the course of their employment. However, there is no obligation for employers to prevent these injuries under such legislation and benefi ts provided to workers are without fault and, in most cases, with- out liability to the employer. Voluntary standard Compliance with the new standard for psychological health and safety in the workplace is voluntary. It will not be legally enforceable in Canada under OHS or other legislation unless it is possible to enforce it under a gen- eral duty clause, and unless and until it is incorporated by reference into OHS legislation — which remains to be seen. Many CSA standards have been directly incorporated into OHS leg- islation. It is currently not known whether any jurisdiction will incor- porate this new standard into legislation. Legislative amendment can be a slow process. If a jurisdiction were ultimately inclined to statutorily mandate compliance with the stan- dard, it could be some time before a specifi c requirement becomes law. Enforcement of the new standard through the general duty clause of OHS legislation may be challenging for regulators. Existing workplace violence and harassment provisions may present legal impediments to the enforcement of the standard through a general duty provision because, arguably, regulators have already established the specifi c reasonable precautions required by enacting specifi c statutory requirements for harassment and violence prevention policies and programs. Employer challenges and opportunities e standard presents challenges for employers because the steps prescribed and obligations imposed are signifi cantly broader than those currently imposed on employ- ers under OHS and human rights legislation. Fully implementing these requirements will involve an extremely complex exercise for employers, and could be particularly challenging for small employers. Despite these challenges, employ- ers have a signifi cant interest in taking steps to promote psychological health and safety at work as part of an over- all system for enhancing workplace wellness. e standard presents an opportunity for employers to develop policies and procedures beyond existing OHS and human rights requirements to protect and enhance this component of workplace health and safety. is may assist employers in stem- ming the tide of litigation arising in various forms from workplace bully- ing, harassment, violence and stress. Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and leads Heenan Blaikie's national OHS and Workers' Compensation Practice Group. She can be contacted by e-mail at cedwards@heenan.ca or by telephone at (416) 360-2897. Shane Todd is an associate in Heenan Blaikie's Labour and Employment Law group and a member of its OHS and Workers' Compensation Practice Group. Shane may be contacted by email at stodd@heenan.ca or by tele- phone at (416) 643-6958. Workplace mental health and the law Putting the new standard for psychological health and safety in context THE POSSIBILITY OF LIABILITY MAY PROVIDE REASONS FOR EMPLOYERS TO TAKE ACTION. THEY DO NOT, HOWEVER, ESTABLISH A CLEAR EXISTING LEGAL OBLIGATION TO PROVIDE A PSYCHOLOGICALLY SAFE WORKPLACE

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