29 Nov Bill 127 – Workers Compensation Act
There’s good news for Ontarians experiencing mental health issues as a result of their employment. Laws are changing to make it easier for Ontarians to receive workers’ compensation for mental health claims.
Background to Bill 127 – Workers Compensation Act
Presently, the threshold of mental anguish which an employee must suffer in order to qualify for Workplace Safety and Insurance Board (WSIB) benefits is quite high. Generally, workers have to experience a significant, sudden and unexpected workplace trauma to file a WSIB claim related to mental health.
However, in 2014 the Workplace Safety and Insurance Appeals Tribunal held that the Workplace Safety and Insurance Act’s provisions concerning mental stress were in violation of the right to equality under the Canadian Charter of Rights and Freedoms since it treated mental health injuries differently from physical ones.
New amendments to Ontario’s Workers’ Compensation Act under Bill 127 will expand WSIB benefits eligibility for workers who have experienced workplace psychological stress or trauma. These amendments make workers eligible to the same benefits as they would if they had been physically injured on the job and will come into effect January 1, 2018.
This expanded eligibility comes as both society and the law increasingly recognize that both injured and mentally anguished workers have similar needs, namely: support and time to heal.
Compensation for Traumatic and Chronic Mental Stress
Section 13 of the Act, will now entitle workers to WSIB insurance plan benefits for “chronic or mental stress arising out of and in the course of the worker’s employment.”
The Bill will benefit workers who have suffered traumatic or chronic work-related stress. That is, workers who experience either one significant work-related trauma (i.e. witnessing a graphic workplace casualty) or a series of smaller stresses (i.e. ongoing workplace harassment) will be able to apply for WSIB benefits.
Who is Entitled To WSIB Under Bill 127?
In order to qualify for WSIB benefits under Bill 127’s amendments, workers must meet three criteria:
- Their mental illness must be diagnosed by a registered healthcare professional based on the Diagnostic and Statistical Manual of Mental Disorders (DSM).
- They must have experienced substantial and/or ongoing stressors.
- Their chronic mental stress must have been caused by work-related stressors.
What Constitutes a Significant Mental Stressor?
Maybe your boss has unfairly criticized your performance. Perhaps a deadline has been moved a few days earlier. You have to do another project with [insert name of that coworker you just can’t stand here]? Are these considered significant enough stressors for you to file a WSIB claim?
The WSIB defines work-related chronic mental stress as “any diagnosable mental disorder that has been predominantly caused by a substantial work-related stressor or series of stressors.” The WSIB clarifies that a substantial stressor must be “excessive in intensity and/or duration compared with the normal pressures and tensions experienced by people working in similar circumstances.”
Daily stresses including changes in output expectations, ongoing interpersonal conflicts, transfers, changes in shift schedules and even demotions are not considered significant enough stressors to justify a WSIB claim.
Scenarios That Qualify for WSIB Benefits
Scenarios that would likely qualify for WSIB benefits:
- A subway driver develops PTSD after witnessing an individual end their life by jumping in front of the train they are conducting
- An assistant develops an anxiety disorder from ongoing degrading comments from her superior.
Scenarious that wouldn’t likely qualify a worker to WSIB Benefits
- A waiter’s shift schedule is changed by her boss.
- A communications assistant is suspended without pay after several warnings about his poor performance and repeatedly arriving late.
Mental Health Related WSIB Claims – Implications for Employers
Employers may expect a rise in the number of employees filing mental health related WSIB claims. Employers should be mindful and proactive in addressing situations and conditions that might cause to an employee to experience significant or ongoing mental stress in the workplace. Employers should provide employees with resources for coping with unexpected workplace stressors, take complaints seriously, and correct problematic situations.
They should recognize that healthy employees – both physically and mentally – make for productive workplaces.
If you have further questions about Bill 127 and its implications for you or your workplace, contact the employment law team KCY at LAW by calling (905) 639-0999 or contact us online to book your consultation.