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Employee mental health matters

Columnist Maria Gergin joins Canadian HR Reporter – she’ll look in-depth at mental health issues from a legal perspective
Mental health in the workplace

By Maria Gergin

In the first episode of Billions, just before Paul Giamatti’s Chuck Rhoades, New York District U.S. attorney, is about to engage in a pivotal confrontation related to the white collar crime his office is investigating, he sits down on a couch in his office — and he meditates.

On the other side of town, at Bobby “Axe” Axelrod’s star hedge fund, the office’s in-house psychiatrist sits down for a pep-talk session with an employee anxious about making a $100 million trade.  That even the prime-time television workplace now features mindfulness breaks and mid-day employee therapy sessions speaks to one of the emerging workplace wisdoms of our time: Employee mental health matters – because a workplace can only be as high functioning as its employees.

In the majority of workplaces, “employee mental health” will bring up a sole concept to mind: Accommodation. And this makes sense — under provincial and federal human rights statutes, employers are subject to legal obligations to provide reasonable accommodation to employees with diagnosed mental health issues. But accommodation is at only one end of the mental health spectrum, and addresses only employees who are already grappling with a mental health challenge.

Increasingly, the conversation is shifting to the promotion of employee mental health, which is, arguably, on the opposite end of the psychological health spectrum, and involves supporting employee mental health in the workplace in a way that is preventative and proactive rather than reactive. Unlike accommodation, which involves reacting to an individual employee’s circumstances, the promotion of employee mental health aims to affect every employee in the workplace, by assessing risks of psychological harm in its workplace and putting in place processes that mitigate these risks and affect the whole workplace culture.

At the center of this conversation is the Psychological Health and Safety in the Workplace Standard, a 2013 document commissioned by the Mental Health Commission of Canada and funded by Health Canada. As a human resources professional, chances are that you have already heard of the standard. Although not a legal document, the standard sets out a set of guidelines and recommendations for the assessment, mitigation and promotion of psychological health in the workplace, and provides a definition of the psychologically healthy and safe workplace as “one that actively works to prevent harm to worker psychological health, including in negligent, reckless, or intentional ways.”

As such, the standard seeks to expand and clarify the scope of employers’ legal duty with respect to the provision of a safe and healthy workplace and has the potential to impact a number of areas of workplace law, including human rights law, contract law and workers’ compensation law. As a management-side employment lawyer who frequently advises on mental health-related issues, I know that from an employer’s perspective, the standard is a frightening concept.

It presents the kind of broad obligations and realm of “ought to have knowns” and “ought to have dones” that employers typically find to be an operational nightmare. Without a doubt, employers are increasingly recognizing that the promotion of workplace psychological health makes good sense from a financial, performance, organizational, and sustainability perspective. But as with anything else, compliance and change is difficult without a clear set of bechmarks and goals.

And compliance with the standard in particular necessarily requires a psychological health management system tailored specifically to the circumstances of a particular workplace in order to be effective. Wanting to support employers with the practical implementation of the Standard and the management of employee psychological health issues not only on a legal but also practical level, I set out to train with the Canadian Mental Health Association and recently obtained a certification as a Canadian Mental Health Association Psychological Health and Safety Advisor.

As it turns out, the day-to-day implementation of the standard need not be costly nor difficult, nor does it need to involve large-scale organizational change in order to produce effective results. As the more than 40 organizations who have already implemented the standard across Canada have demonstrated, implementation can be as simple as weaving in psychological health strategies into a workplace’s existing policies and processes and committing to improving general workplace mindfulness.

As a PHS Advisor, I am trained to assist employers with all stages of the standard’s implementation, including carrying out a psychological health and safety assessment tailored to the size and nature of a workplace, offer sample audit tools, make practical recommendations regarding implementing processes for addressing the workplace’s specific risks to psychological health, assist with the mitigation of legal issues arising from such risks, and put in place long-term strategies to evaluate and support psychological health in the workplace.

This column will aim to draw on this experience, and will be dedicated to all things workplace mental health, including practical tips and resources for incorporating the principles set out in the standard, issues relating to the accommodation of mental health disabilities, commentary on note-worthy mental health related case law, and tales from the employee mental health trenches.

Maria Gergin

Maria Gergin is an associate in the Toronto office of Borden Ladner Gervais LLP. She can be reached at mgergin@blg.com or visit www.blg.com for more information.
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