Posts tagged: mental disability

Top 10 Employment Law Developments in 2017

By , December 4, 2017 1:43 pm

In 2017, the provincial legislature and Ontario judges continued to change Ontario’s employment laws. These changes resulted in higher payroll costs and a more regulated workplace. This blog briefly identifies 10 employment law developments from the past year.

1.Changes to the Employment Standards Act. Many changes were made to this law in November. Most of these changes take effect on January 1, 2018 which doesn’t give employers much time to change existing practices and policies. We offer a fixed fee service for employers who need help complying with these changes.

2.Ministry of Labour inspectors are visiting more Ontario workplaces. In the past, most inspections were the result of an employee complaint. Now the MOL is getting more proactive. For the last several years, the MOL has initiated strategic inspection blitzes. In 2017 the MOL announced it is hiring 175 additional ESA enforcement officers. This means your organization is much more likely to be inspected for compliance with Ontario’s employment laws including the many changes to the ESA that take effect January 1, 2018.

3. Accommodating employees with mental disabilities may be the fastest growing area of human rights law.  We recently devoted ⅓ of our employment law conference to this topic. It seems as if more and more employees are debilitated by depression and anxiety, and often an employee’s interaction with their supervisor triggers a mental disability. It is a complex area fraught with legal uncertainty. The duty to inquire about a person’s health when there are objective signs that the person may have a mental disability is one such issue.

4. Damages for employee terminations are going up. In the past, the sole issue in most wrongful dismissal cases was how much pay the employer owes the employee in lieu of the notice of termination that the employee should have received.  Now employees routinely seek several kinds of additional damages. A 2017 decision considered the termination of a 44-year-old female supervisor with 9 years’ service shortly after filing a sexual harassment complaint. The trial judge awarded her 10 months pay in lieu of reasonable notice, $ 60 000 in moral damages because of the way she was terminated, $ 25 000 for the way the employer handled her human rights complaint,  interest, and about $ 425 000 in legal fees. The Court of Appeal increased the damage award. In another case, a trial judge awarded a terminated employee, among other damages,  $ 100 000 for the intentional infliction of mental stress and the tort of harassment which I believe was recognized as a legal cause of action in the employment context for the first time.  

5. Termination clauses in employment contracts continue to be successfully attacked. We have written several blogs on this issue. Some judges are refusing to enforce termination clauses whereas others do, so there is considerable legal uncertainty in this area. I’m hoping the Supreme Court of Canada will provide some guidance in this area. In the meantime, we suggest that employment contracts be reviewed periodically – especially termination clauses.We provide this service for a fixed fee

6. Changes to AODA. The Employment Standards under the Accessibility for Ontarians with Disabilities Act came into effect for all employers in 2017. Did you know this law imposes 9 new obligations  on all employees, and 2 additional obligations on organizations with more than 50 employees? Also, did you know that organizations with more than 20 employees must file a report with the government by December 31, 2017? We offer a fixed fee service  for employers who need help complying with these obligations.

7. Sexual harassment. The Harvey Weinstein story shone a light on this issue – again. Changes to Ontario’s health and safety law in late 2016 amended the definition of “workplace harassment” to include sexual harassment. Employees now have the right to have complaints investigated by a trained person, and be told the outcome of the investigation and whether the alleged harasser was disciplined. We offer a fixed fee service for employers who have not complied with the new obligations imposed on employers including the obligation to implement a written workplace harassment investigation procedure.

8. Pregnancy and parental leave extended to 18 months. The federal government and provincial government have amended laws to make this happen. As written about in our blog, now employees can take 12 months EI benefits over an 18 month period. 

9. Drug testing. The federal government plans to regulate the sale of marijuana and it won’t be limited to people who need it for medical purposes. Recently some judges have found that drug testing is permitted in certain circumstances. I predict that more and more employers will be implementing drug and alcohol policies in 2018.

10. Employee bonuses. Is an employee entitled to the bonus they would have earned if they had received notice of termination? This often turns on how to  interpret the term “actively employed”. The Alberta Court of Appeal and Ontario Court of Appeal seem to be taking a different approach to this issue. Accordingly, it looks like the Supreme Court of Canada will have to decide this issue. In the meantime, we suggest that bonus clauses in employment contracts be updated.

For 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. 

EMPLOYER ALERT: Legislation Denying Benefits to Workers with Mental Disabilities Declared Unconstitutional

By , May 19, 2014 9:11 am

Ontario Administrative Tribunal Declares Legislation Denying Benefits to Workers with Mental Disabilities Unconstitutional

On April 29, 2014 the Ontario Workplace Safety & Insurance Appeals Tribunal (“the Tribunal”) concluded that part of sections 13 (4) and 13(5) of the Workplace Safety & Insurance Act (“the Act”)  is unconstitutional because this law treats workers with mental disabilities differently than workers with physical disabilities.

Section 13 of the Act

Section 13 (4) and 13(5) of the Act provide, in part, that a worker is not entitled to collect benefits for mental stress unless it is an acute reaction to a sudden and unexpected event arising out of and in the course of his or her employment. Benefits are not granted if the mental distress is caused by the employer’s decisions or actions relating to the worker’s employment including a decision to change the work performed, or the working conditions, or to discipline the worker or to terminate the employment.

The Facts

In this case, a nurse, claimed workers compensation benefits because she was unable to work because of an adjustment disorder with mixed features of anxiety and depression that was caused by a co-worker. In particular, she claimed she was subject to ill treatment by a doctor for a period of 12 years. Initially she was denied benefits because she did not satisfy the conditions of section 13 of the Act; that is; her mental stress was not caused by an acute reaction to a sudden and unexpected event.

Implications of this Decision

Until now, most employees claim for benefits for mental stress under an employer’s sick leave policy, short-term disability plan, or long-term disability plan if such plans exist.

If no such plan exists then the employee is placed on an unpaid sick leave and the employee can apply for employment insurance (EI) sick benefits.

1. Employees may start filing workers compensation claims instead of filing for EI sickness benefits.

If this decision is not overturned, it could have SIGNIFICANT implications on small employers in the private sector who usually provide minimal (if any) sick or disability benefits for workplace absences caused by mental disabilities.

In our experience, employees go on sick leave because of the mental stress caused by work for various reasons. It may be because of the way a co-worker or supervisor is treating the employee as the nurse alleged in this case.  Or because the employee’s workload is not manageable.  Or because of a poisoned work environment that is caused by sexual or other harassment. The list goes on and on.

The number of recognized mental disorders has increased significantly in recent years as evidenced in the Diagnostic and Statistical Manual of mental Disorders, 5th Edition which was published in 2013.

If an employer does not offer sick benefits or disability benefits then we anticipate that employees will start filing for workers compensation benefits in these scenarios because workers compensation benefits are much more generous than EI sickness benefits.

If these claims are granted then employer worker compensation costs will increase.

2. Employees with mental stress will start asking to return to jobs other than the pre-injury job

Under the Act, an employer who employs 20 or more employees generally has a duty to re-employ an injured worker who has at least one year continuous service.

In particular, under section 41 of the Act provides that if a worker is medically able to perform the essential duties of her pre-injury employment, then the employer shall, among other things, offer to re-employ the worker in the position that the worker held on the date of injury. If however the worker cannot perform the essential duties of her pre-injury employment then the employer must offer the worker the first opportunity to accept suitable employment that may become available with the employer.

If a worker claims that his supervisor is causing the mental stress then this worker will no doubt be seeking suitable employment in a different job and/or department. In our experience, a worker’s doctor will provide a medical opinion which provides that a supervisor is causing the worker’s mental stress, if asked.

If these requests are accepted by the WSIB then an increased burden will be placed on organizations who employ 20 or more employees to find suitable work for mentally stressed employees. This could cause organizational havoc in some workplaces.

Doug MacLeod has been advising Ontario employer’s for over 25 years. If you have questions about your organization’s obligations in connection with a disabled or injured employee under the Act or the Ontario Human Rights Code, he can be reached at [email protected] or 416 317-9894.

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