By Cheryl A. Edwards
As currently drafted, the steps prescribed and obligations imposed by the standard are significantly broader than those currently imposed on employers by OHS and human rights legislation. The breadth of the standard also raises concerns about its viability for Canadian employers.
The draft standard requires organizations to draft policy committing to the development, implementation, funding, continuous improvement and review of a systematic approach to managing a psychological health and safety (PHS) system.
In addition, leaders — those with “key responsibility for the organization’s performance — have special obligations to develop a “psychologically healthy and safe workplace,” one that “promotes workers’ psychological well-being and allows no harm to worker mental health in negligent, reckless or intentional ways.” This is done by leading in a “positive way,” making psychological health and safety part of decision making, and “engaging” workers to understand the importance of PHS and the risks of PHS hazards, determine the effectiveness of the PHS system and identify workplace PHS needs.
Organizations are required by the standard to “engage stakeholders” to determine their PHS needs, encourage participation in programs to meet those needs and in the PHS system evaluation process, and ensure that the results of the evaluation process are communicated. Organizations must provide time and resources, identify and remove barriers, and train and consult with workers in all aspects of the PHS system associated with their work.
Organizations must also educate stakeholders about stigma, psychological illness, PHS and PHS policies, and provide a process for input. They must inform external parties about PHS policies, monitor compliance with those policies, and address any PHS issues that arise.
If there is an existing PHS system in place, the standard recommends that it be reviewed to determine compliance with the standard. If a PHS system does not exist, an organization must gather the necessary information to develop a PHS system.
The standard requires organizations to set PHS objectives, develop a plan to meet those objectives and, at least every three years, review the achievement of those objectives. It also requires organizations to define minimum PHS requirements and provide training and support to workers and management to enable them to meet these minimum requirements.
Organizations are required to identify “hazards” — a potential source of psychological harm to a worker — and assess the risks of those hazards. Once they are identified and assessed, organizations must establish and maintain processes to eliminate or prevent their occurrence, protect workers and foster a psychologically healthy workplace. They must also plan to manage changes that can affect PHS and provide information, training and assistance to workers and stakeholders regarding those changes.
Identifying, investigating incidents
Organizations must identify events where psychological illness or injury has or may occur, develop a process to respond to those events and to provide support, training and debriefing opportunities to responding personnel. Organizations have similar obligations in relation to events that pose PHS risks at the organizational level without individual illness or injury. Reporting and investigation processes for “work-related injuries, illnesses, acute traumatic events, chronic stressors, fatalities (including suicides) and PHS system incidents” must also be implemented. After an investigation, recommendations for PHS system improvement must be developed and communicated to affected parties and form the basis for corrective action.
Monitor, audit, improve
Organizations must monitor PHS and the PHS system to determine, among other things, whether objectives are being met and hazards are identified, assessed and controlled. The standard also requires organizations to establish audit programs to determine compliance with the standard and internal PHS system requirements, and whether the system is effectively implemented and maintained. Management must ensure that documented corrective action is taken and that corrective actions and the results of the audit are communicated to affected workplace parties.
OHS law comparison
The proposed standard aims to improve psychological safety which, under the standard, is synonymous with “mental health” — broadly defined as a “state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community.”
The breadth of this definition is at odds with obligations under OHS legislation. Canadian courts and tribunals have not interpreted OHS legislation this broadly and, in fact, have indicated that the purpose of OHS legislation is not to create a perfect workplace but rather to ensure a reasonable level of protection for workers.
The standard states that it has been developed in the “context of an existing and still emerging legal duty for the employer to demonstrate that all reasonable steps have been taken to provide and sustain a psychologically safe workplace,” and that there is an “increasing recognition in at least two provinces” that PHS is part of the obligation to “provide a safe system of work under OHS legislation.”
This appears to overstate OHS law as currently no Canadian OHS legislation mentions or defines mental or psychological health and safety. While the standard correctly identifies that some jurisdictions have added workplace violence and harassment provisions to OHS legislation, they do not technically require employers to provide a psychologically safe workplace.
In the federal jurisdiction, for example, employers are required to identify workplace violence factors and assess the workplace for risk, develop and implement a program for identifying and preventing these risks, educate employees on factors that contribute to workplace violence, and provide a means to investigate reports of workplace violence.
This is the general model for workplace violence prevention requirements in Canada. It falls far short of the requirements to promote psychological well-being and allow no harm to workers’ mental health. Obligations in relation to workplace harassment, which exist in only a few provinces’ OHS legislation, also fall short of the obligations in the standard. At the highest, these provisions apply to threats, conduct or gestures that may cause injury or illness, or a course of vexatious comment or conduct that is unwelcome. There is no reference to psychological health and safety, and no OHS statute includes an express obligation for employers to prevent harassment; rather, employer obligations are limited to creating policies and programs and conducting training regarding these policies and programs.
The definitions in the standard are also inconsistent with similar terms in OHS legislation. The definitions of hazard, harm, health, psychological health, psychological safety, and psychologically healthy and safe workplace in the standard are very broad and vary from the definitions that have emerged in Canadian OHS law. For example, no OHS statute defines a “hazard” as a “potential source of psychological harm to a worker,” or “health” as a “state of complete physical, social and mental well-being and not merely the absence of disease or infirmity.”
In addition, the standard is inconsistent with the extent to which employers have traditionally been required to protect workers from mental or psychological safety risks. In fact, prior to the enactment of workplace violence and harassment provisions in OHS legislation, tribunals in Ontario specifically stated that statutory concepts of occupational health and safety may not have been sufficiently broad enough to encompass “mental” or “psychological” risks or “harassment” in the workplace.
While CSA standards are voluntary and have no legal force in their own rights, they are considered best practice documents in their subject matter area and have the potential to affect employers’ legal obligations. The proposed standard could become part of OHS law either through references in occupational health and safety legislation, which would require specific amendments to enabling legislation or regulations, or as a result of being used by courts and tribunals to determine whether an employer has complied with the general duty clause in OHS legislation.
In determining whether a particular step taken by an employer has satisfied the general duty clause, courts and tribunals will consider standards for health and safety promulgated by respected external sources — such as the CSA — and accordingly, it is possible that the standard could be used to interpret and inform employer obligations under the general duty clauses of OHS legislation.
The fact that the standard far exceeds the provisions of any current OHS legislation in its definitions, duties and responsibilities in relation to mental or psychological safety could have very significant long-term consequences for employers who have not met the extraordinarily far reaching and stringent provisions of this proposed standard.
Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and now leads Heenan Blaikie's national OHS and workers' compensation practice. She can be reached at firstname.lastname@example.org or (416) 360-2897.
This piece was co-authored by Shane Todd. Shane Todd is an associate in Heenan Blaikie LLP’s Labour and Employment Law group and a member of the firm’s OHS & Workers’ Compensation Practice Group. Shane can be contacted at email@example.com or at 416-643-6958.
Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or firstname.lastname@example.org
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