New mental health safety standard may impact employers’ duties related to employee mental health

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Osler legal updateRecent studies have shown that one in five Canadians will experience a mental illness in their lifetime, and that mental health is the number one cause of disability in Canada, accounting for nearly 30% of disability claims.

The reality suggested by these statistics undoubtedly impacts Canadian workplaces, affecting employee-employer dynamics, organizational structure, and overall productivity. Employers are increasingly grappling with the effects and accommodation of mental illness in the workplace, and a recently released standard suggests that providing a psychologically safe workplace may soon become a legal requirement.

In January 2013, as part of a Health Canada mandate, the Mental Health Commission of Canada released the National Standard of Canada: Psychological health and safety in the workplace (the “Standard”). The Standard represents a new, first-of-its-kind, voluntary national standard on psychological health and safety in the workplace, and sets out a number of initiatives employers are encouraged to implement in order to promote employees’ mental health.

The Standard has already received much attention for the notably broad definition of mental health it has adopted, and because, although voluntary, it sets out policy and process guidelines with a potentially far-reaching impact on employers’ operations. Perhaps most significantly, Ontario courts and tribunals are likely to take the Standard into consideration when determining the standard of care employers are expected to meet in the context of safeguarding employee mental health in the workplace.

The Standard: an overview

The Standard provides that its guidelines are intended to assist employers in cultivating a psychologically healthy and safe workplace, which the Standard defines as a workplace that “actively works to prevent harm to worker psychological health, including in negligent, reckless or intentional ways, and promotes psychological well-being.”

In many ways, the Standard affirms Ontario employers’ existing legal obligations under the Ontario Occupational Health and Safety Act (the “OHSA”) the Ontario Human Rights Code (the “Code”), and the Accessibility for Ontarians with Disabilities Act (the “AODA”). For instance, the Standard calls for employers to identify, assess, and control hazards to worker health, including psychological health, in the workplace – a duty which employers already have under the OHSA. Similarly, the Standard’s emphasis on an individualized and interactive approach to determining employees’ mental health needs is an extension of employers’ existing duty, under the Code, as well as the Employment Standards under the AODA, to provide accommodation to employees with mental health conditions. A notable difference, however, is that while employers’ duty to accommodate pertains to existing, diagnosed mental health conditions for individual employees, the Standard implies a wider duty to ensure psychological health and safety is promoted in the workplace as a whole.

The Standard’s main compliance component involves developing a psychological health and safety management system (“PHSMS”) in the employer’s workplace. The PHSMS a meant to be a set of policies and processes to assist the employer in identifying and analyzing risks to psychological health in the workplace, controlling risks associated with organizational changes and job demands, and training supervisory staff regarding the prevention of psychological harm. The PHSMS should also include critical event preparedness, and a process relating to the reporting and investigation of work-related psychological health and safety incidents.

For instance, some of the most common workplace psychological stressors identified by employees are changes to work procedures, staffing, or products. A PHSMS would assist an employer in managing this type of stressor by having in place a change-management procedure consisting of clear dialogue between management and employees impacted by the change, information and training sessions for impacted staff, and the provision of support necessary for employees to adapt to the changes, such as temporary modified work arrangements.

To determine other types of events which are likely to present stress and risks to psychological health, employers are encouraged to assess their organizational culture, rates of turnover, rates of absenteeism and disability benefit utilization rates. Also relevant are employees’ job demands, work/life balance, workload management, engagement, protection from violence, bullying and harassment, and leadership and expectations.

Notably, a large component of risk assessment under the Standard emphasizes consulting with employees themselves through the use of focus groups, surveys and audits in order to obtain their direct input with respect to their psychological health needs.

Another key principle put forward by the Standard is that its guidelines must be tailored to the size, nature and complexity of each workplace, and that psychological health is the responsibility of all members of the employer’s workplace. As such, the Standard’s implementation allows for some flexibility and is intended to reflect the specific realities faced by each organization. This is reinforced by the Standard’s provision of a number of resources, such as case studies and audit tools geared towards different types of organizations.

Implications for hospitals and other employers

Employers’ duties with respect to assessing workplace mental health risks and addressing employee mental health issues continue to be defined by the OHSA, the Code, and other relevant legislation. Unlike the OHSA and the Code, however, the Standard does not have the force of law, and as such does not create legal obligations. The Standard’s voluntary nature means that employers are not legally required to adopt its recommendations.

However, courts and other adjudicative bodies will likely consider the Standard in their determinations of the standard of care employers must meet in the context of providing a psychologically safe workplace. For instance, a court may well look to the Standard when assessing employee claims relating to mental stress and other psychological health issues experienced in the course of work.

While the significance and interpretation courts will give the Standard remains to be seen, employers should nevertheless familiarize themselves with the Standard and assess the degree to which its guidelines accord with its current practices.