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Posts tagged: occupational health and safety

Employer Alert: Change to WSIA as of January 1, 2018

By , January 15, 2018 11:23 pm

As of January 1, 2018, an employee can claim workers compensation benefits for chronic or traumatic mental stress that is predominantly caused by workplace harassment

In May 2014 I blogged about an administrative tribunal case which concluded that subsections 13 (4) and (5) of the Workplace Safety and Insurance Act (WSIA) were unconstitutional.

January 1, 2018 Change to WSIA

On January 1, 2018 – almost 4 years later – these subsections were repealed and they were substituted with the  following:

(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Implications of the Administrative Tribunal Case and the Change to WSIA

As mentioned in my earlier blog, as a result of the administrative tribunal case and the subsequent change to WSIA I believe (i) Employees may start filing workers compensation claims instead of filing for Employment Insurance sickness benefits; and (ii) Employees with chronic or traumatic stress may start asking to return to jobs other than their pre-injury job.

What is Chronic Mental Stress?

The WSIB  has prepared an Operational Policy document (i.e Policy 15-03-14) on chronic mental stress and it was amended on January 2, 2018.  It does not have the force of law but sets out the WSIB’s interpretation on this issue. Of particular interest are the following excerpts from this Policy:

A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a “substantial” “work-related stressor”arising out of and in the course of the worker’s employment.

Workplace harassment will generally be considered a substantial work-related stressor

Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.

Interpersonal conflicts

Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict:

  • amounts to workplace harassment, or
  • results in conduct that a reasonable person would perceive as egregious or abusive.

Standard of proof and causation

In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor 

  • arose out of and in the course of the worker’s employment, and
  •  was the predominant cause of an appropriately diagnosed mental stress injury.

For the purposes of this policy, “predominant cause” means that the substantial work-related stressor is the primary or main cause of the mental stress injury—as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.

Diagnostic requirements

Before any chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

  • acute stress disorder
  • posttraumatic stress disorder
  • adjustment disorder, or
  • an anxiety or depressive disorder.

In most cases the WSIB will accept the claim for adjudication if an appropriate regulated health care professional provides the DSM diagnosis. However, in complex cases, for example where there is evidence that a non-work-related stressor(s) may have caused or contributed to the injury, the WSIB decision-maker may require a further assessment, including an assessment by a psychiatrist or psychologist, to help clarify initial or ongoing entitlement.

Operation Policy 15-03-02 which was amended January 2, 2018 sets out the WSIB’s interpretation of Traumatic Mental Stress

Relationship between Mental Stress Claims under WSIA and Harassment Allegations under the Occupational Health & Safety Act

Based on the WSIB’s  Policy 15-03-04, one could argue that if a workplace investigator concludes an employee was subject to workplace harassment and the WSIB concludes this harassment was the predominant cause of an appropriately diagnosed mental stress injury then it appears that the employee would be entitled to workers compensation benefits for chronic mental health stress under the WSIA.

As a result of the recent amendments to Section 13 (4) and WSIB Policies 15-03-04 & 15-03-01 I expect there to be an increase in the number of WSIB mental stress claims.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Due Diligence and Why It’s Important

By , January 15, 2018 11:44 am

Employers have various obligations under the Occupational Health and Safety Act (“the OHSA”), including the very broad, catch-all duty to take every reasonable precaution in the circumstances to protect workers.

When there is a workplace accident, the Ministry of Labour will often charge the employer with violating this general duty. Violations of the OHSA are “strict liability” offences, which means that the Ministry of Labour does not need to prove that the employer intended to violate the OHSA.

An employer’s sole defence is the “due diligence” defence, which is available in two circumstances:

  1. If the accused reasonably believed in a mistaken set of facts which if true, would render the act or omission innocent; or
  2. If the accused took all reasonable steps to avoid the particular event.

In Ontario (Ministry of Labour) v Cobra Float Service Inc., an Ontario court dismissed an OHSA charge by finding that the employer had established the due diligence defence.

Facts

The circumstances around this case arose from a tragic fatality at a construction site, where a curb machine overturned while being off-loaded from a float trailer, crushing a worker who later died from his injuries. The charge against the company alleged that the curb machine was moved in a manner that endangered the worker.

Decision

The court found that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. Although there were no training courses available for the task in question, the worker had previously demonstrated his ability to perform the task. The court found that the employer was entitled to rely on the worker’s experience.

The court noted that the employer could have established a more formalised training protocol within the company but the lack of this formalised protocol did not necessarily mean that the employer was exposing workers to foreseeable risks and dangers. The court cautioned against measuring the practices of smaller companies against those of larger companies, which typically have more resources to devote to formalised training.

With respect to the due diligence defence, the court found that:

  • The company had held regular safety meetings;
  • There were no formal education courses that workers could take on the loading and unloading task;
  • The worker knew or should have known that what he was doing was unsafe;
  • The company encouraged workers to discuss any safety concerns and provided a form for those discussions at regularly scheduled meetings;
  • The worker had successfully moved the curb machine 27 times; and
  • There was no evidence that this was an industry-wide safety issue.

Lessons to be Learned

  1. Because violations of the OHSA are “strict liability” offences, the Ministry of Labour does not need to prove that the employer intended to violate the OHSA.
  2. Evidence regarding a company’s safety practices go a long way to proving that the employer took all reasonable steps to avoid the particular workplace accident (i.e. to make out the due diligence defence).
  3. All employers should prioritize safety, but it is worth noting that what is appropriate for a small to medium size employer may differ than what is appropriate for a larger employer.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Marijuana legalization – How Employers Should Navigate the Hazy Legal Landscape

By , January 11, 2018 10:45 am

The legalization of marijuana is expected to change Ontario’s employment law landscape in 2018. Legislation is expected to be implemented by July 2018.

It is not too early for employers to take proactive steps to address these changes.

Expected changes

Bill C-45, An Act respecting Cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Bill”) passed its second reading on November 27, 2017. Although the bill will legalize cannabis across Canada, the provinces and territories will generally determine how marijuana can be sold and used. The Bill allows the Minister of Labour to make regulations relating to smoking in the workplace.

What employers should do

Employers should review their current workplace policies and if a drug and alcohol policy does not exist, then the employer should consider  adding one before the new cannabis laws take effect. Among other things, the policy should recognise that recreational use of marijuana will be legalized under the Bill requires a different approach than medical use of marijuana which has been legal since 1999.

Although the legalization of marijuana is a big change, employers often forget that just because something is legal, does not mean it is permissible at the workplace. For example, alcohol is legal, however, employers are entitled to expect that their employees report to work sober and refrain from drinking alcohol at the workplace. Similarly, simply because recreational marijuana is being legalized does not mean that it is permissible to smoke marijuana at the workplace, or attend the workplace impaired. Employers can set out their expectations regarding impairment and safety at the workplace in workplace policies and procedures.

With respect to medical use of marijuana, employers need to be mindful of their obligations under Ontario’s Human Rights Code, namely, the duty to accommodate employees to the point of  undue hardship, which may include permitting an employee to work while under the influence of marijuana. The duty to accommodate does not eliminate an employer’s right to seek medical proof of prescription and medical documentation supporting the fact that the employee is required to ingest marijuana during working hours, nor does it eliminate an employer’s duty to ensure that the workplace is safe for all employees. Thus, employers must remain prepared to deal with marijuana-related accommodation requests on a case by case basis, taking into consideration the employee’s medical needs and their obligations under health and safety laws.

Lessons to Be Learned

The legalization of marijuana is changing the legal landscape. Due to these changes, we recommend that new policies be drafted to address the anticipated increase in  marijuana use, or that existing policies be amended to ensure they are consistent with the upcoming changes. The MacLeod Law Firm offers a fixed fee service to prepare new drug & alcohol policies, or to revise existing policies.

If you have any questions regarding the effect of the Bill on your workplace, or would like to learn more about the fixed fee service mentioned above, feel free to contact 647-985-9894.

Constructive Dismissal Update: Quitting Because of Intolerable Working Conditions

By , March 10, 2015 1:50 am

If an employer’s treatment of an employee is so bad that it makes continued employment intolerable, an employee has the right to quit and claim damages for constructive dismissal. Is there a clear dividing line between intolerable and tolerable behaviour? Between a poisoned work environment and a healthy one? The short answer: no.

What is a Poisoned Workplace?

An employer who creates intolerable working conditions is sometimes considered to have created a poisoned workplace. Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated.

Except for particularly egregious stand-alone incidents, a poisoned workplace is not created unless the serious wrongful behaviour, which creates a hostile or intolerable work environment, is persistent or repeated.

Who must Prove That a Poisoned Workplace Exists?

The employee bears the onus of proving that a poisoned workplace exists.  An employee must also establish that the employer’s persistent conduct has rendered his/her continued employment intolerable.

What Test Do the Courts Apply to Determine Whether a Poisoned Workplace Exists?

There must be evidence that an objective reasonable bystander would conclude that a poisoned workplace environment has been created.

A Case Where A Poisoned Work Environment Was Found to Exist

In one case (2000), a judge found that an employee was constructively dismissed because, among other things, the employee’s manager raised unwarranted performance concerns, the employee received a number of unwarranted written warnings, and he was placed on probation without justification and thereafter his manager became “more authoritarian, impatient and intolerant” and “subsequently acted impulsively and without justification.”

A Case Where A Poisoned Work Environment Was Found Not to Exist

In one case (2014), the Ontario Court of Appeal considered a claim by an employee who alleged he was constructively dismissed because of a poisoned work environment caused by racism. The court disagreed with the trial judge who concluded that a reasonable person would conclude that the circumstances were such as would justify the employee to consider he had been constructively dismissed from his employment.

In reaching this conclusion, the Court of Appeal did not find that the offending conduct was persistent and repeated, and found no evidence that the employer intended to repudiate the employment contract.

Lessons to Be Learned

Reasonable people can disagree on whether an employer’s mistreatment of an employee is so serious that it makes continued employment intolerable. Accordingly, it is very important to carefully review all of the circumstances when determining whether a poisoned workplace exists.

If an employee claims to an employer that he is being forced to work in a poisoned workplace then the employer should immediately take steps to address the situation and clearly communicate to the employee that the organization is committed to providing a safe workplace.

If an employee is identifying misconduct that constitutes workplace harassment within the meaning of the Occupational Health & Safety Act then the employer should immediately commence an investigation under its Workplace Harassment Policy.

If an employee is identifying misconduct that constitutes harassment within the meaning of the Ontario Human Rights Code then the employer should immediately commence an investigation under its human rights policy. To read more about a poisoned workplace under the Code click here.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

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