Mental health is garnering more attention in the workplace

Construction employers may soon need to pay more attention to possible workplace hazard.

The Mental Health Commission of Canada (MHCC) has stated that mental health problems are the leading cause of short and long-term disability in Canada.

The annual cost to Canadian workplaces has been pegged at almost $20 billion.

The commission and the B.C. Ministry of Labour, Citizens’ Services and Open Government have each, in different ways, been grappling with the issue.

MHCC, together with the Bureau de normalization du Québec and the Canadian Standards Association (CSA), has been working to develop a National Standard of Canada for Psychological Health and Safety in the Workplace.

A draft CSA standard was released in late 2011.

It states that employers are required to do three things to create a healthy workplace.

First, employers have to create a policy to develop, implement and fund a psychological health and safety (PHS) system. Second, the PHS system will have psychological health and safety objectives and minimum requirements. Third, employers must identify events where psychological illness or injury have occurred or may occur and develop a process for investigating them.

The final standard is expected in the summer.

However, CSA standards are not law. Unless a jurisdiction formally adopts the standard into its occupational health and safety law, it isn’t binding on employers.

In British Columbia, amendments to the Workers Compensation Act were introduced in November 2011 by the Ministry of Labour, Citizens’ Services and Open Government.

One of the amendments in Bill 14 is intended to broaden compensation coverage for mental stress conditions arising in the workplace.

Vancouver labor lawyer Bill Duvall, a partner in Fasken Martineau, wrote in a November 2011 Labor, Employment and Human Rights Bulletin that previously a worker could be entitled to compensation for mental stress – not resulting from an injury for which the worker would otherwise be entitled to compensation – only if the mental stress was an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.

However, under Bill 14, the requirement that mental stress be an acute reaction to a sudden and unexpected employment-related traumatic event has been eliminated.

In its place, a worker will have to demonstrate that the mental stress is a reaction to one or more employment-related traumatic events – or a significant work-related stressor, or a cumulative series of significant work-related stressors.

Duvall said Bill 14 expands legislative coverage for mental stress in two ways. First, a new sub-category of mental stress – as a reaction to a significant work-related stressor, or a cumulative series of significant work-related stressors – has been created.

Second, previously a worker was required to demonstrate that mental stress was the result of an acute reaction, now he or she need only demonstrate that one, or a combination of traumatic events has occurred, without reference to an acute reaction to a traumatic event.

Many in B.C.’s construction industry have been puzzled by the timing of Bill 14.

Duvall said the amendments appear to be meant to comply with the Plesner decision.

In 2009, the B.C. Court of Appeal in Plesner v. British Columbia Hydro and Power Authority struck down the WorkSafeBC policy’s description of a traumatic event.

According to the decision, a section of B.C.’s Workers Compensation Act (WCA) didn’t align with Section 15 of the Canadian Charter of Rights and Freedoms. People suffering from mental disability were treated differently from those suffering from physical disability, which constituted discrimination.

The matter is far from settled.

Bill 14 has undergone only first reading and there could be changes to it before it becomes law.

Some in B.C.’s construction industry are concerned about the implications of the proposed WCA changes.

In a written response to the ministry, Council of Construction Associations president Grant McMillan said, “There are significant problems with expanding the criteria for stress claims. It is extremely difficult to separate the non-occupational causes of stress from the occupational causes... Unlike other gradual onset diseases, there is no scientific or medical basis for evaluating the causation, nature and time of recovery from stress.”

Jack Davidson, president of the B.C. Road Builders and Heavy Construction Association, said the proposed changes could cost the province’s construction industry between 10 per cent and 30 per cent in increased WorkSafeBC premiums.

Although the stress-related changes to the WCA and the CSA standards are separate initiatives and only at the proposal stage, it is conceivable that new CSA standards could eventually affect WorkSafeBC regulations.

“A government might decide to adopt a CSA standard and cite it in its OHS regulations,” Duvall said. “In that case, the standard would likely guide employer conduct within that jurisdiction.”