By Cheryl A. Edwards
The standard is intended to promote a psychologically healthy and safe workplace, or one that “promotes workers’ psychological well-being and actively works to prevent harm to workers’ psychological health including 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 left unmanaged, these issues can lead to increased employee turnover, lower employee engagement and increased short- and long-term disability claims. The 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, according 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 complaints under occupational health and safety laws. They can also lead to tragic incidences of suicide and incidents of physical violence in the workplace.
The high cost, disruption and toll of mental health issues — and a series of high profile 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 advocate 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 suffer at work, loss of employment and other losses. 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.
The majority of Canadian jurisdictions have now enacted workplace violence and harassment obligations within OHS legislation. Workplace violence obligations vary, but they are generally broad enough to encompass, 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. The obligations under these OHS provisions are principally reactive and require the employer to respond to complaints, 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 jurisdictions, harassment in the workplace on the basis of enumerated grounds. Employers may be found liable if employees are subjected to harassment on enumerated grounds in the workplace. However, these obligations are only engaged in relation to specific enumerated grounds (race, sex and religion for example) under human rights legislation. Thus, 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 infliction of mental suffering 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 infliction of mental suffering in the employment relationship and, accordingly, the courts have established that employers do not have a common law duty of care to protect workers from negligently inflicted psychological harm to workers at the workplace.
Workers’ compensation legislation may compensate workers for stress or other psychological injuries that they suffer in the course of their employment. However, there is no obligation for employers to prevent these injuries under such legislation and benefits provided to workers are without fault and, in most cases, without liability to the employer.
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 general 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 legislation. It is currently not known whether any jurisdiction will incorporate this new standard into legislation. Legislative amendment can be a slow process. If a jurisdiction were ultimately inclined to statutorily mandate compliance with the standard, it could be some time before a specific 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 specific reasonable precautions required by enacting specific statutory requirements for harassment and violence prevention policies and programs.
Employer challenges and opportunities
The standard presents challenges for employers because the steps prescribed and obligations imposed are significantly broader than those currently imposed on employers 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, employers have a significant interest in taking steps to promote psychological health and safety at work as part of an overall system for enhancing workplace wellness. The 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.
This may assist employers in stemming the tide of litigation arising in various forms from workplace bullying, harassment, violence and stress.
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 email@example.com or (416) 360-2897.
Co-author: 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 firstname.lastname@example.org or by telephone 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 email@example.com
, or visit www.mathewsdinsdale.com
for more information.