The WSIB recently introduced a Work-Related Chronic Mental Stress Policy to support Bill 127 which the Ontario government passed on May 17, 2017. With 39% of Ontario workers indicating that they would not tell their managers if they had a mental health problem (Source: CAMH), this policy is a positive step towards ending the stigma surrounding mental health diagnoses, particularly in the workplace.

About Bill 127

Also referred to as the Stronger, Healthier Ontario Act, “Bill 127 includes amendments to the Workplace Safety and Insurance Act…to allow entitlement to chronic mental stress for workplace injuries that occur on or after January 1, 2018”. The amendment was a result of the Ontario Workplace Safety and Insurance Appeal Tribunal finding that part of the WSIB’s Operational Policy “violated the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms and were unconstitutional”.
Source: Hicks Morley

WSIB’s Policy

The drafted policy would provide entitlement for traumatic mental stress (ex. someone witnessing a horrific workplace accident), and chronic mental stress (ex. someone being bullied by co-workers). Stress caused by changes to the worker’s employment (ex. change in job duties) would not be covered under the new policy.

According to the WSIB, “work-related chronic mental stress is caused by a substantial work-related stressor or series of stressors”. When evaluating the seriousness of a stressor, its intensity and duration are often examined. Situations such as harassment and bullying in the workplace are definitely seen as stressors that would contribute to chronic mental stress.
In order for a traumatic mental stress or chronic mental stress claim to be ruled on, there has to be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM). Examples may include:

• Acute stress disorder
• Posttraumatic stress disorder
• Adjustment disorder, or   
• An anxiety or depressive disorder

The drafted policy states that the claim for adjudication will be accepted if an appropriate health care professional provides the DSM diagnosis. However, a WSIB decision-maker can require an assessment by a psychiatrist or psychologist at a later point to confirm entitlement. 
Source: WSIB Ontario

Your Input and Feedback

The WSIB has an open consultation on the policy until July 7, 2017. If you’d like to provide your feedback on the proposed policy, you can do so by emailing consultation_secretariat@wsib.on.ca.

If you have any questions regarding WSIB claims management, policy development, or other mental health or other workplace issues/topics, our team at Clear Path is happy to provide you with assistance. You can contact Clear Path President, Anna Aceto-Guerin at anna@clearpathemployer.com or by phone at 519-624-0800. 

Mental health claims are on the rise in Canada. In fact, according to the Mental Health Commission of Canada, disability claims have doubled over the last 20 years with mental health conditions accounting for approximately 47 per cent of them.
 
In any given year, one in five Canadians will experience a mental health problem or illness. This translates to approximately 30 per cent of short- and long-term disability claims. The Canadian Mental Health Association indicates that these claims are estimated to cost our health care system $4.7 billion in care, $3.2 billion in disability, and more than $6 billion in lost productivity costs due to employees taking time off while sick, struggling to work while sick and turnover. 

Preventing Mental Health Issues in the workplace
​
Mental health disorders that are unrecognized or untreated not only damage an employee's health and career, but can also reduce productivity in the workplace. Adequate treatment, on the other hand, can alleviate symptoms for the employee and improve job performance. Accomplishing this requires a shift in attitude about the nature of mental disorders.

This year’s CMHA Mental Health Week is encouraging Canadians to #GETLOUD about mental health. No one can be truly healthy and happy without positive mental health. To try to achieve this, Canadians require psychotherapy, counseling and community-based mental health services and programs.

Workplaces can play a critical role in maintaining positive mental health. By ensuring an open-dialogue and creating a safe environment for conversation, an employee may be more likely to seek treatment without being afraid of any ramifications from their employer.

Unfortunately, no workplace is immune from the risks of claims associated with mental health. 
When faced with a worker injury or illness, you want to get the employee back to work and productive as soon as possible. 

Injured or ill workers can have significant impact on financial and human costs for your company,however the process of managing disability claims can be frustrating and time consuming.  Clear Path has you covered with our disability management services, helping you reduce your claim costs for your business. 

If you need help, contact us for a complimentary 15-minute consultation.

Anna Aceto-Guerin, President and Senior Consultant
Clear Path Employer Services / HR Consultant

April 20th marks the pseudo-international holiday for cannabis culture, known in many communities as “420” (pronounced four-twenty). In several cities around the world, people gather to both celebrate, smoke and peacefully advocate for the legalization of cannabis.  In Canada, the largest gatherings on April 20th take place in Vancouver, Ottawa, Montreal, Toronto and Edmonton.  One only need do a simple Google search to realize the growing following for this festival like gathering of music, vendors, booths, official sponsors and prominent speakers. 

When Canadian users gather for this year’s “420” however, they will have a different, long-anticipated reason to celebrate: the April 13th Liberal announcement of the legislation which decriminalized marijuana.  This announcement set many Canadian employers ablaze with questions as to how they are required to respond to the changing legal and social Canadian landscape. 

What does the legalization of marijuana mean for Canadian employers?

The first thing employers need to realize is that the current legislation is merely a stepping stone for the legalization of recreational marijuana as the actual laws regarding the production, use, sale and distribution will fall to provincial legislation and likely not until July 2018.   This means that before Canadian employers become dazed and confused, they have time to prepare their businesses for the pending legal and social changes. 

One major change employers should recognize is the social shift away from conservative views on recreational marijuana.  Does this mean employers should be prepared to excuse unsafe behaviour of stoned workers? Of course not! It means that employers should review and modify their workplace policies and procedures to reflect the removal of references to marijuana usage as “illegal”.  Employers will still have the right to restrict the use and possession of marijuana in the workplace. Specifically, Ontario employers should be aware that the same restrictions of smoking tobacco in the workplace will apply to the smoking of marijuana. Employers also have the right to discipline employees for recreational use of marijuana if the impact of the drug impacts performance, just like with alcohol. 

However, also just like with alcohol, employers are required to accommodate disabilities to the point of undue hardship, which means employers need to be mindful of the use of marijuana to treat certain medical conditions and illnesses.  Human Rights legislation would therefore suggest the range of accommodation would depend on an employer’s financial ability to accommodate, the type of work performed and the impact of marijuana use on the employee’s essential duties. Employers should be aware however that such accommodations should be balanced with their broader duty to provide a safe workplace under section 25 of the Ontario Occupational Health and Safety Act.  This means that with safety-sensitive occupations, such as those involving heavy equipment, a balanced approach is required when accommodating medical marijuana in the workplace. 

Employers should also be aware that not every government agency is prepared for the implications and consequences of the Cannabis Act. For instance, the Workplace Safety and Insurance Act does not have specific policy regarding the use, distribution or coverage of medical marijuana.  Currently, the Tribunal approach to the entitlement for medical marijuana is as follows:

• While the WSIB drug formulary does not specifically authorize the use of medical marijuana, there is a discretion under the Workplace Safety and Insurance Act, 1997 to authorize the payment of medical marijuana in appropriate cases.
• Prior Appeals Tribunal decisions have noted there is a lack of “high quality scientific studies documenting the efficacy of marijuana in treating pain and that marijuana is also a commonly used recreational drug.” The Tribunal is of the opinion that given these circumstances, there is a “clear potential of individuals to make inappropriate requests for reimbursement of the cost of marijuana”.
• In order to address these concerns, prior Tribunal decisions have emphasized certain requirements in order for entitlement to reimbursement for medical marijuana to be established:
  • The worker’s pain should be constant and debilitating;
  • Clear evidence that other methods of assisting the worker to deal with this pain have been shown to be ineffective;
  • There must be “reliable medical evidence” that the worker’s physicians have formed “reasonable opinion that medical marijuana has been effective in assisting the particular worker in dealing with his or her compensable impairment”.
  • In a number of cases, the effectiveness of medical marijuana has been demonstrated by the elimination or reduction of the worker’s use of narcotic medications.
  • There should be a lack of contraindications regarding the use of marijuana, such as a history of overuse or abuse of marijuana, or an escalated risk of abuse or negative psychological impacts.
  • The worker must have the appropriate authorization to use and possess medical marijuana from Health Canada.

The legalization of recreational marijuana brings some of the above requirements into question as to their continued appropriateness. For instance, the lack contraindications regarding the use of marijuana, especially if said use is now legal.  How will WSIB address the legal and social shifts to the acceptance of recreational marijuana?

Employers should remember that until all the above potential changes officially come into force, current restrictions remain in place.  However, it is in their best interest for employers to begin reviewing and amending their policies and procedures to reflect potential workplace changes.
 
Do you have questions regarding medical or recreational marijuana in the workplace? Contact Anna Aceto-Guerin at Clear Path Employer Services with your questions or concerns.

Clear Path was recently awarded an objection to initial entitlement for one of our customers based on the WSIB's Traumatic Mental Stress policy (15-03-02).  Even though our efforts proved successful, this case provides a valuable lesson for other employers helps to illuminate what meets -- and what does not -- the definition of a traumatic event according to the WSIB. 
 

What is policy 15-03-02?

The WSIB policy on Traumatic Mental Stress entitles a worker to benefits for traumatic mental stress that occurs suddenly in an event arising out of and while in the course of employment.

The event that occurs may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member or others. For the event or incident to be considered traumatic it must be clearly and precisely identifiable, objectively traumatic, and unexpected in the normal or daily course of the worker’s employment or work environment.

There are some restrictions to this policy. There is no entitlement for traumatic mental stress due to an employer's decisions or actions that are part of the employment function such as terminations or demotions. As well, workers who develop mental stress gradually over time due to general workplace conditions are not entitled to benefits.
 
What is the criteria to be covered under policy 15-03-02?

• Witnessing a fatality or a horrific accident
• Witnessing or being the object of an armed robbery
• Witnessing or being the object of a hostage-taking
• Being the object of physical violence
• Being the object of death threats
• Being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
• Being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse)
• Being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).

 
What was the scenario for this particular claim?

The worker claimed that he was suffering from stress after a physical altercation that was started by another employee. Following the altercation, he left the workplace and returned later in the day to deliver a doctor’s note that would allow him a month off.

The worker returned to work the following week, providing his employer with a Form 6 stating that he wished to commence a WSIB claim. The employer offered the worker modified work with arrangements to work from home after the employee indicated through a Functional Abilities Form (FAF) from his doctor that he would be too stressed to come to work. The worker rejected the modified work further stating that he would be unable to work from home as a result of the stress.
 
Possible outcomes for this case?

A claim for Traumatic Mental Stress can cost a company hundreds of thousands of dollars. Here’s what Clear Path team member Jessica Masse says about it.

“One month of loss of earnings is the tip of the iceberg. Those who are granted LOE under this policy, Traumatic Mental Stress can rack up costs in the form of healthcare and LOE benefits. In this case, one month could have easily turned into two and so on. The result of all these costs will stay on a company’s NEER statement for four years.”

Why doesn’t this case translate into entitlement for the employee?

In the Form 6, the worker stated that he "had merely brushed the arm of the work crew member after he had received his work assignment." When the employer investigated the incident, witnesses told a different story. Five witnesses that had seen the event claimed that the worker was providing inaccurate information and that the worker in question grabbed the arm of the other employee -- which initiated the altercation.

The altercation described above does not meet the criteria of the WSIB's policy, as it does not qualify as traumatic and a person feeling insulted by another employee does not translate to harassment.

The WSIB agreed that there was no basis for the worker’s claim of being approached aggressively or harassed. The worker who filed the claim was the individual who initiated inappropriate physical contact by grabbing the work crew member’s arm.

As a result of this false claim and the company's policy related to workplace violence and harassment, the employer found grounds for termination of the employee.
 
What other HR lessons can we learn from this case?

Even though the company avoided the potentially high WSIB claim costs when the claim was denied, there are some additional things to consider from an HR perspective.

When a situation occurs that involves workplace violence or harassment, employers will be in a better position to take action if they are fully compliant with the amendments to the Ontario Occupational Health & Safety Act in 2010 (also known as Bill 168). By having up-to-date policies realted to workplace violence and harassment, you have a policy in place to ensure the termination of a violent employee. In this case, the company did have such a policy in place and was able to take appropriate actions against the offending employee.

Another wrinkle in this case is the fact that the employee attempted to file a claim both through the WSIB and the company's Short-Term Disability program for the same incident (which was also denied). Employers should be aware of such "double dipping" attempts by employees and take appropriate actions accordingly.

Questions?

If you have any questions about WSIB claims management, including how to object to the initial entitlement of a claim, we would love to hear from you. Contact Anna Aceto-Guerin at anna@clearpathemployer.com or toll free at (888) 336-0950.

The Ontario Human Rights Commission recently released a new policy which aims to provide user-friendly guidance on how to define, assess, handle, and resolve human rights issues related to mental health and addiction disabilities. The policy is designed to prevent discrimination based on mental health (Source: OHRC).

Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission, states:

The Human Rights Code already protects people in Ontario with mental health disabilities and addictions from discrimination and harassment under the ground of "disability". What this new policy seeks to do is provide some clarity and guidelines around what exactly constitutes discrimination and how to navigate through such situations. 

As Hall puts it, "People want to comply with the law. But we don't often know what to do, we don't know what the rights are, we don't know what the responsibilities are." (Source: Toronto Sun)

Duty to accommodate

Under the Human Rights Code, employers have a duty to accommodate the needs of people with psycho-social disabilities to make sure they have equal opportunities, equal access, and can enjoy equal benefits. Employment facilities must be designed inclusively or adapted to accommodate people with psycho-social disabilities in a way that promotes integration and full participation (Source: OHRC).

Section 13 of this new policy seeks to provide in-depth legal guidance on what this accommodation actually looks like. One of the most emphasized points is that the duty to accommodate mental health disabilities is no less rigorous than the duty to accommodate physical disabilities. There cannot be a "double standard" for how mental health disabilities are treated versus how physical disabilities are treated.

Check out the full policy at: www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions - containing numerous examples of specific situations you may encounter in the workplace. There is also an e-learning program in place: www.ohrc.on.ca/en/learning/duty-accommodate 

What has your company done for mental health?

With the Canadian National Standard for mental health (See Blog: 
Psychological Health and Safety in the Workplace) and the Accessibility for Ontarian's with Disabilities Act - this new policy only adds to the number of considerations employers must have when it comes to accommodation of these issues.

In the official release of the new policy, the OHRC states:

So what strides has your company made towards accommodating and preventing discrimination for mental health in the workplace? Have you proactively implemented mental health standards or will you only react when a human rights compliant has been made? Please share your experiences in the comments section below:

Clear Path Employer Services is a team of HR consultants and disability management experts aimed at assisting employers with legislative compliance, WSIB claims management, and HR challenges. Contact us today to learn how we can help you with mental health! 519-624-0800 or info@clearpathemployer.com 

The following article has been re-posted from the Guelph Mercury and was written by Clear Path's medical consultant Victoria Mummery in response to the article "Well-Being Initiative Enters Third Phase":

I noted with great interest the May 14 Mercury story "Well-being initiative enters its next phase."

As a health-care professional working for many years with adult mental health issues, I have witnessed the devastating impact of illness on personal, family and work life. My partner is a high school teacher and repeatedly sees teenagers who are unable to take advantage of resources being offered to them because of personal and/or family mental health issues. They become adults with mental health problems, further taxing the system.

This article reported that 75 per cent of calls to police are for mental health issues, and that five per cent of the population use more than 65 per cent of health care dollars. These are incredible statistics.

It is logical from this that front-line workers — such as police, teachers and emergency medical service (EMS) professionals — are in an essential position to determine health and social needs and to arrange appropriate care to prevent future criminal and other catastrophic activity. This is so much more cost effective than dealing with criminal activity and health crisis.

The Guelph Wellbeing Initiative involves sectors such as public health, police, the City of Guelph and other health care professionals working together to take a preventive approach to health and security of city residents. Already, they see evidence of improved life and cost saving.

As outlined on the web page guelphwellbeing.ca, Guelph is Canada's first municipality to align with the Canadian Index of Wellbeing, a pan-Canadian initiative focused on community wellbeing.

There have been a number of local initiatives, including the paper "Addressing Social Determinants of Health in the City of Guelph" published in 2013, as well as the HealthJam hosted by the City of Guelph on May 14 and 15. These are more examples of the exceptional mayor, council and city staff that we have in Guelph. They are able to step away from everyday life and see the cost-effectiveness of promoting health and preventing unnecessary suffering and illness.

My family and friends in London, Ont., and Toronto frequently express jealousy about the fabulous leadership we have in Guelph, as compared to mayors like London's Joe Fontana and Toronto's Rob Ford, who do not appear to have big-picture thinking, and appear to make their leadership a personal quest and ego trip.

Guelph is famous internationally for initiatives in waste management, low unemployment, has been declared among Canada's most romantic cities two years in row, has a low crime rate — all this with tax levels that are average or below average compared to other cities of comparable size.

Now, Guelph is a leader in having police, health and other sectors working together to promote early and effective intervention in mental and other health issues.

Many people say Guelph is the best place to live and I believe this is in large part related to the great leadership and local collaboration we have. Here we have another example of Guelph being number one in leading the usage of the well-being index to drive positive community change allowing people of Guelph to achieve better quality of life.

Victoria Mummery is a registered nurse and a self-employed Guelph health care consultant.

Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently made a significant decision regarding entitlement limits for workplace mental stress claims. The tribunal declared that most of the legal restrictions placed on Workplace Safety and Insurance Board (WSIB) mental stress claims are unconstitutional and a violation of equality rights under section 15 of the Charter of Rights and Freedoms (Source: Mondaq). 

Hicks Morley, a local law firm, explains this decision is likely to have a significant impact on employers of all sizes and will likely increase the number of claims filed by employees who allege that they have suffered mental stress as a result of the regular stresses of the workplace. 

The Decision

The case involved a nurse who alleged that she was subjected to abusive behaviour at work for a period of 12 years. She suffered mental health effects as a result of this abusive behaviour but her claim for benefits under the WSIA was repeatedly denied by the WSIB. The WSIB relied on the mental stress entitlement restrictions outlined in subsections 13(4) and (5) of the WSIA: 

The worker then appealed the decision and the Tribunal held that the mental stress exception constituted an unjustifiable infringement on equality rights under the Charter. Based on that conclusion, the Panel declined to apply subsections 13(4) and (5) of the Act and allowed to worker’s appeal (Source: Gowlings).

Implications for Employers

Although this decision only has an immediate impact on this specific appeal, it will be highly persuasive in any future appeals regarding mental stress. Joseph Cohen-Lyons from Hicks Morley explains that, from the Tribunal’s perspective, the WSIA no longer limits entitlement for mental stress to traumatic mental stress claims. Chronic mental stress claims are now eligible for compensation. 

It is important to note, however, that until such a decision becomes the subject of a judicial review or the government decides to amend the legislation, there will remain a level of uncertainty as to whether such a claim or appeal for mental stress benefits will succeed (Source: Mondaq). 

Regardless of this uncertainty, employers will still be under increasing pressure to limit and address the causes of workplace stress as a result of this decision. Employers should be reviewing their current practices, policies and procedures in order to ensure they are protecting themselves from potential mental stress claims. Documentation is key throughout this entire process (Source: Hicks Morley).

The Royal Canadian Mounted Police attracted national attention last month when one of their officers challenged the RCMP about being able to smoke medicinal marijuana while on the job and in uniform.

Cpl. Ronald Francis serves with the RCMP in New Brunswick and on November 4th, he received a prescription for medical-grade marijuana to combat his Post-Traumatic Stress Disorder (PTSD) symptoms. His prescription allows for three grams (approximately 9-15 joints) a day. According to Francis, smoking marijuana has no impact on his ability to be a police officer. He also added that he has full intentions to continue smoking on the job and while in uniform (Source: CBC).

In an attempt to raise awareness about post-traumatic stress disorder, Francis was filmed smoking marijuana while in uniform and the situation quickly went viral and attracted national attention. (Source: National Post)

Was the RCMP accommodating Francis' PTSD?

Moreau agreed that the RCMP has a duty to accommodate the medical needs of their members, but he also added that they “must also consider the effect on other members and on public perceptions”. (Source: CBC) The RCMP initially provided Francis with treatment for his PTSD through an occupational stress injury clinic – part of a program the force has put in place specifically for members who experience mental health difficulties. However, Francis soon began seeking out alternative treatments.

Update on the situation

​Things quickly escalated upon release of the video footage of Francis smoking marijuana in public. On November 28th, Francis was stripped of his duties and placed on medical leave. He had his regular work uniform seized and was ordered to turn in his red serge uniform the following day.

The story escalated even further on December 6th when Francis was charged with assaulting a fellow officer. According to Cst. Julie Rogers-March, the incident took place as the Mounties attempted to locate him for a “wellness check” due to concerns about his medical condition. It is alleged that Francis assaulted an RCMP officer and a stun gun was then used to control the situation. Francis is currently undergoing a 30-day psychiatric assessment (Source: The Star). 

Legal responsibilities for employers

This is a precedent-setting case for the RCMP as well as many other companies across Canada. It raises the overarching question - how should employers manage employees who are prescribed medical marijuana – particularly those who are engaged in public safety. Should they be provided with designated spaces at work? Should they be given modified duties? 

An employer does have the right to challenge medical treatments it considers inappropriate by seeking a second medical opinion. In addition to this, an employer can also evaluate any worker that obtains a medical marijuana prescription (or any other inappropriate or questionable treatment) to ensure that they are not impaired in judgement or motor skills. In the event that the worker is impaired in some way, the employer can place limits on the type or nature of work the worker is permitted to perform. 

In this case, prior to his medical leave placement, Francis was given modified duties by the RCMP to ensure that he was never doing work that would have been “remotely understood to have been police-related.” The RCMP also released a statement saying that they are continuously looking at strengthening supports for officers with operational stress injuries and are looking at its policies to define how it manages members who have been prescribed medicinal marijuana. (Source: MacLeans) 

What do you think?

There has been a lot of discussion and controversy surrounding this case. Saint John MP Rodney Weston said that the RCMP’s decision to seize Francis’s uniform created some confusion among local citizens. Some questioned the response given the fact that Francis does have a prescription for medicinal marijuana. Others were supportive of the decision saying that, when you’re part of an institution like that, you need to understand the importance of the values that uniform represents and preserve that. So what do you think? Leave your responses in the comments section below.

Currently dealing with an accommodation issue or a difficult claim? The experts at Clear Path can help! Contact us today for a consultation or attend our Introduction to Disability Management workshop on January 16th in Kitchener. 

Drug and alcohol testing in the workplace, particularly randomized testing, has always been a grey area for employers. When is such testing permissible? When is it deemed reasonable in light of safety concerns? The Supreme Court of Canada has answered some of these questions after their long-awaited decision regarding randomized drug and alcohol testing in the case of Irving Pulp and Paper.

A decision seven years in the making 

Back in 2006, Irving Pulp and Paper adopted a new policy on alcohol and drug use at its mill in New Brunswick. Because of the highly dangerous nature of the workplace, Irving decided to implement a random alcohol testing program as part of this new policy. This program required 10 percent of employees holding “safety-sensitive” positions to be randomly selected for unannounced breathalyser testing each year. In the event that the test came back positive, the employee could be subject to significant disciplinary consequences, including dismissal. The policy also stated that a failure to submit to testing was grounds for dismissal.

Having a testing program in place in such a dangerous workplace environment seems reasonable, doesn’t it? Well it must also be taken into account that, in the 15 years prior to the introduction of this new policy, there were only 8 documented incidents of alcohol consumption or impairment at the mill. In addition to this, there were no accidents, injuries, or near misses connected to alcohol (source).

The case begins

The same year that the policy was implemented, a policy grievance was filed by the union challenging the “without-cause” aspect of the alcohol testing component and alleging that it was unreasonable. The grievance proceeded to arbitration. The arbitration board found that there was not sufficient evidence of an existing problem with alcohol use in the workplace, despite the dangerous nature of the work environment. In this case, the employee’s right to privacy superseded the benefits of the program. The board found the policy to be unreasonable and unjustifiable.

The matter then went to the New Brunswick Court of Appeal who rejected the union’s argument alleging that random and mandatory testing in a workplace is justified once the employer establishes that its workplace operations are inherently dangerous. In the eyes of this court, the policy was found to be reasonable.

Supreme Court's final decision

After being bounced around without a final decision, the case was finally brought before the Supreme Court of Canada. In the end, the majority of Supreme Court judges agreed with the labour board in a 6-3 majority, which found that the mill did not have a serious safety problem associated with alcohol, and therefore did not have reasonable grounds for testing. However, with that said, the Supreme Court did say that there are cases in which employers in safety-sensitive work environments may be justified in implementing random alcohol testing. Specifically in cases when there is a safety risk in the workplace due to alcohol or a general problem with substance abuse exists.

The three judges that did not agree with the final decision noted that an employer should not be required to wait for a serious incident of loss to take proactive steps to mitigate risk. One of the judges said that “an employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action. To require such a causal connection is not only unreasonable, it is patently absurd.”

We are interested in hearing your thoughts and comments about this ruling by the Supreme Court. You can participate in the comment section below.

Drug and alcohol testing in the workplace

So, let’s get down to business. What does this decision mean for you as an employer? What do you need to know about workplace alcohol and drug testing programs?

Despite the decision made by the Supreme Court, there still remains a level of uncertainty when it comes to company drug and alcohol testing programs. Determining how “reasonable” it is in each unique case can be a bit subjective. The overall purpose of random testing, or just testing in general, is to reduce to the risk of incidents and injuries caused by alcohol and drug use. If implementing a drug or alcohol test isn’t an option, there are alternatives according to H&S Ontario that can help to reduce concerns about worker impairment and minimize potential safety risks:

1. Employee Assistance Programs
2. Drug Education and Health Promotion Programs
3. Off-Site Counselling and Referral Services
4. Peer or Supervisor Monitoring

Need help? Clear Path’s Health and Safety team provides training, policy development, and the expertise you need to establish a culture of safety in your workplace. Contact us today: www.clearpathemployer.com/safety

The Canadian Standards Association, the Bureau de normalisation du Québec and the Mental Health Commission of Canada have released a new National Standard for psychological health and safety in the workplace (currently available for free download). The Standard was developed to help organizations create and sustain psychologically healthy and safe workplaces.

Although the Standard is completely voluntary right now it does provide a framework for organizations to create and/or improve a psychologically healthy and safe workplace.

What do you think about when you hear Workplace Wellness?  Companies across the globe are learning that simple programs such as health education and off-hours sporting events are getting staff moving and improving overall workplace well-being. For example, today Bell was promoting their initiative to donate five cents to mental health initiatives across Canada. More often we are seeing companies of all sizes taking action towards promoting the well-being of employees in the workplace – and not all of these programs need to be costly initiatives. 

 Wellness initiatives can take whatever form works best for your company. The place to start is to identify the needs and interests of your staff in order to develop a program that people will actually participate in. For example, maybe an after work pick-up hockey game would work well for your staff rather than a lunch-time nutrition seminar. Developing a program that brings health and wellness into your workplace that your employees are interested in, can have many impacts on your company:

• Reduce absenteeism 
• Decrease injury claims
•  Boost employee morale
• Encourage camaraderie 
• Increase job satisfaction

There is a definite link to employee well-being and productivity in the workplace, making wellness initiatives essential rather than “nice-to-have.” Not only will wellness programs increase productivity and employee morale, but they will also attract and retain a strong workforce. Your wellness program could become your competitive advantage that attracts the best people to come work for your company. Reducing absenteeism and injury claims can have a serious affect on your company’s bottom line in a positive way. Increasing employee morale creates an environment where people want to come to work and take pride in what they’re doing. If a wellness program is one step towards this, then why not take action? 

In the workplace, employee well-being can be broken up into three areas. In order for employees to achieve positive morale and workplace well-being, all three must be met in their own unique way.

When deciding what wellness programs to implement in your workplace, take into consideration what your program will target. For example, creating after work pick-up hockey targets physical health and social health as it’s a fast-paced team-oriented game. It could also serve as a means for employees to blow off stress which means this program essentially targets each point. 

To get you started, here is a list of a few ideas of programs you could implement in your workplace:

• Lunch-time health seminars
• On-site flu clinics
• Blood pressure testing
• Stair-walking club
• Off-hours sporting events (hockey, volleyball, soccer, dodge ball)
• Free fruit available instead of fatty snacks (apples, bananas, oranges) 
• Perks program for fitness gear or gym memberships

Some of these programs will work well for your organization, others you might need to mould into something that will better suit your workplace. Whatever you chose, keep in mind that the affects can be extremely positive – and cost effective – for your organization.

Visit our website and check out our “Six Ways to Reduce WSIB Costs” page. We also offer NEER Workshops where you’ll learn practical strategies for maximizing your refund.  We have three sessions coming up in March in Toronto, Cambridge and Mississauga. Register today!

As of January 2013, Canada is now the first country in the world to adopt a National Standard for mental health in the workplace. The Canadian Labour Code already addresses bullying and sexual harassment, but this new standard now gives employers and employees support to make their workplaces psychologically safe and healthy.  Although there are many factors that can impact mental health, the Standard addresses aspects that are within control of the workplace and can have an affect on the workforce.

A good point was made by Karla Thorpe, Associate Director of Compensation and Industrial Relations at the Conference Board of Canada, when she said:

 “Mental health is a significant business issue that requires the attention of organizations. People who experience mental health issues face incredible challenges in the workplace. Many are misunderstood, shunned and underutilized. In a world where shortages of critical skills are top of mind for many organizations, employers cannot afford to allow this situation to continue.”

There are four main areas of consideration that an employer should look at in order to see the business value of psychological health and safety in the workplace:

1. Risk mitigation – including compliance with existing legislation and regulation
2.  Cost effectiveness 
3. Recruitment and retention
4. Organizational excellence and sustainability

According to the mental health commission, mental illness is the fastest-growing reason for STD and LTD claims, accounting for about 30 per cent in Canada and costing business $6 billion in lost productivity and absenteeism in 2011. Although the standard is currently voluntary for most business, knowing these statistics and knowing that mental health can affect everyone – directly or indirectly – it seems beneficial to adopt the Standard of promoting a safe and healthy workplace. Workplaces that chose to have a proactive approach to psychological health and safety will be better able to:

• Recruit and retain talent
• Improve on employee engagement
• Enhance productivity 
• Reduce workplace grievances, turnover, disability, injury rates and absenteeism

The implementation of this Standard is not a “yes or no” response. It will be a continual process of improvement for employers and employees. Employers should address the needs and gaps in psychological safety in their workplace, and then integrate the Standard into the existing organizational policies and processes. The Standard will help employers continuously improve their approach to promoting mental health and prevention for all employees – whether they have a mental illness or not.

Creating and maintaining a "culture of safety" at your business is critical for protecting the well-being of your employees and for creating a productive, effective working environment and that includes mental health. 

 Clear Path has experienced professionals who are well versed in Health & Safety legislation and who understand the realities of today's workplaces.  We offer Health and Safety solutions for your company including:

• Developing and implementing Health & Safety policies and procedures
• Developing Health & Safety forms for staff and training on how to do effective accident investigation
• Formal risk assessments of your physical environment
• And more, check out the H&S section of our website for more details

Although it’s called a holiday “vacation” it’s doubtful that many of you actually had time to relax this holiday season. With all the parties and celebrations you have likely put in many late nights, spent time traveling and indulging in holiday treats and cocktails. Well the party is over! The beginning of January marks that time when the late nights and lazy mornings end. That’s right, it’s time to head back to work! And those who are heading back to work this week might be feeling the winter season post-holiday blues.  

It’s not easy gearing up to go back to work; you have to prepare yourself both physically and mentally in order to get back into the “work” mode. For some of us this is more challenging - especially if you were enjoying your holiday vacation on a beach under the sun. Regardless of whether you spent your time-off enjoying the company of a beach, or the company of your in-laws, there are some things you can do to prepare yourself to get back to work:

Relax – This may sound outrageous to some of you, but think back to your holiday vacation; chances are you were kept occupied the entire time. Between the parties and celebrations, shopping and entertaining, did you really get a moment to relax? That’s why this is number one on the list. Take some time over the next week or so to put your feet up after work, order in and get to bed early.

Plan something in January – It’s hard coming off of a week or two of non-stop dinners and parties. Once January comes around you might feel as though there is nothing exciting coming up in the future. Try planning an event in January with your colleagues in the office so that everyone has something to look forward to! Ideas: potluck lunch, staff appreciation, team building session. 

Stay positive – This can be difficult when you transition from sleeping in and attending holiday events, to waking up early and working a full day. However one of our recommendations is to stay positive by making some New Year’s resolutions in your office. Small changes can make a big difference in your day-to-day work life.

Get your internal clock back on track – Chances are you haven’t been up at your regular working hours over the holidays. The first day back to work can be extra difficult when your alarm goes off at 6:30 a.m. for the first time in over a week. Try setting your alarm to “work” the day before your scheduled shift. Even one extra day can help get your internal clock back on track.

Another great way to get back into the swing of things at work is by learning something new. Clear Path offers learning sessions on a variety of topics including: AODA Legislation, Managing Employee Absence and Employee Policy Manuals. Visit our training page and challenge yourself to learning something new in 2013 by attending one of our learning sessions!

The numbers don't lie.  Mental health claims are on the rise. The Mental Health Commission of Canada estimates that mental health problems and illnesses typically account for approximately 30 per cent of short- and long-term disability claims. The decision by the WSIAT (Decision 483/11) expanded the scope of mental health claims benefits entitlement. Now, more than ever, employers should be re-evaluating their claims management processes to reduce costs.

To provide you with more information, our Registered Nurse at Clear Path, Victoria Mummery, shared some insights on mental health and how the symptoms these individuals are faced with can affect the workplace.

Mental Health in the Workplace

Mental health disorders that are unrecognized or untreated not only damage an employee's health and career, but can also reduce productivity in the workplace. Adequate treatment, on the other hand, can alleviate symptoms for the employee and improve job performance.  Accomplishing this requires a shift in attitudes about the nature of mental disorders.

Did you know that 65% of workplace absences can be linked to depression and anxiety?

Situational Depression and Anxiety

• One or numerous events trigger feelings that interfere with normal functioning
• Treatment
  • Therapy/counseling required to help deal with these events
  • Contact your Employee Assistance Program for free, confidential services
  • Don't know if you have EAP or how to access it? Contact Clear Path and we will find out for you in a confidential manner

Biological Depression and Anxiety  

• Struggled with depression and anxiety for many years
  • There might be a family history
  • Recent events might have triggered a response that seems disproportional to the event
• Treatment
  • Medications might be required to balance the neurotransmitter substances in the brain
• Contact our Health Consultant/Nurse at Clear Path if you require assistance to sort out what steps you can take

Remember

Mental health problems affect many employees, but the stigma attached to having a psychiatric disorder may cause your employees to be reluctant to seek treatment - especially if they fear it might jeopardize their jobs. Check out our in-house training course for more information.

Clear Path Learning Sessions
The return to work process for workplace injury claims and mental health claims can be a tricky process to navigate.  Don't let a complex or difficult claim become a problem for you.
Come to our upcoming learning sessions on Nov. 13 in Kitchener to learn more about WSIB claims management:

• Managing Difficult Claims - 9:00 a.m. to 12:00 p.m.
• Preparing for a WSIB Appeal - 1:00 p.m. to 3:00 p.m.

August is Employee Wellness month. Having healthy employees can lead to high productivity, low absenteeism, and a less stressful work environment. It's worthwhile to implement an employee wellness plans that encourages your employees to stay active and fit. Do you have an idea for new wellness programs but not sure how to implement it? Do you have an existing program but not sure how to measure the success of your wellness program? Every business should take advantage of the results that comes from employee wellness programs. The Canadian Centre for Occupational Health and Safety (CCOHS) has developed useful steps to help you get started! The following quickly highlights some steps on how to get a program started:

Step 1: Take ownership and leadership and get support from the "top".
Step 2: Get support from everyone.
Step 3: Acknowledge current or informal activities and collect baseline data.
Step 4: Identify the key needs and expectations of the workplace.
Step 5: Develop a detailed plan.
Step 6: Put your plan into action.
Step 7: Monitor, evaluate and maintain the program

You can check out more useful tips by reading the full article. We also recommend taking small steps. Getting a Wellness Program started can be overwhelming better to implement small steps and measure your success then roll out a very elaborate program with no way to track engagement.

A critical piece to having a Wellness program is to track engagement. Step 7 of CCOHS's 7 step plan, "Monitor, evaluate and maintain the program" is an important one. Asking questions like is it working? Are your employees less stressed? Are your employees more productive? Is there an effective way to measure output? are great questions to measure the success of your program.

An effective way to get buy in from your executive to continue or start to support is measuring your financial results! The Canadian Alliance for Sustainable Health Care (CASHC) has suggested that you can better plan future wellness programs by calculating their financial returns! The CASHC states that employers should invest in more workplace wellness program because they reduce costs caused of providing benefits, reducing absenteeism, and increasing productivity. All great reasons to invest in a Wellness Program! 
​
Read more about calculating your investments from Canadian Alliance. Got a Wellness Program? Make sure to measure your success and share your positive outcomes!

The numbers don't lie. Mental health claims are on the rise. The Mental Health Commission of Canada estimates that one in five Canadians will experience mental health related issues this year. This problem is estimated to cost $20-billion a year in workplace losses. Additionally a recent WSIAT decision (Decision 483/11) expanded the scope of mental health claims benefits entitlement, so now more than ever employers should be re-evaluating their claims management processes to reduce costs.

The return to work process for workplace injury claims and mental health claims can be a tricky process to navigate. As an employer, you want to manage your costs effectively and minimize the impact of delays on your NEER statement. Quite often employers become frustrated with vague doctor's notes from the employee's physician that do not indicate when an employee can return to work, but only indicate that simply more time off is required.

As Laura Williams, a Human Resources Lawyer at Williams HR Law states in a recent article in the March/April 2012 HR Professional: "Employers should be aware that legislative obligations entitle them to request that the employee provide more detailed medical information." This entitlement stems from the employer's obligation to accommodate as required by federal and provincial human rights legislation.

Medical management empowers your organization and put's you in the driver's seat rather than waiting on WSIB or the worker's physician for answers. Introducing an objective independent medical consultant early on in the process to obtain accident history, ongoing treatment plans, and discuss modified duties is an effective way to manage these complicated claims. This person can drive the RTW process by connecting with treating practitioners, following up with the worker, identifying need for independent medical assessments, assist with challenging board decisions as necessary with medical opinion and ultimately reduce lost time and costs.

If you choose not to utilize a medical consultant, remember that as an employer you are still entitled to request more detailed medical information beyond a typical short doctor's note. To assess whether you can accommodate an employee's return to work you are entitled to:

• Restrictions and limitations the employee is experiencing
• How long the employee is expected to experience the limitations
• An assessment of what duties they are capable of performing
• Whether the employee is receiving treatment for their condition
• If the employee is capable or returning to work on a modified basis
• When the employee is expected to return to work at full duties
  
  

Remember that you cannot request a medical diagnosis. Your main focus is functional abilities to facilitate return to work and a timeline of when that might happen..

Be proactive and you will see a faster recovery and resolution of the claim, and reduce your WSIB mental health claims costs in the process.

Join us Thursday April 19th in Mississauga for Handling a WSIB Mental Health claim where we discuss recent trends in WSIB mental health claims, strategies for finding an independent medical consultant, and monitoring a return to work plan to ensure successful return to work.

Recently an article was posted in the Canadian HR Reporter, “Ontario could see spike in mental stress claims”.  This article was very detailed in explaining the nature of the Workplace Safety and Insurance Appeals Tribunal’s decision on eliminating the requirement of physical threat when granting benefits for mental stress claims. We have summarized and highlighted the main points below:

In January the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decided to eliminate the requirement of physical threat when granting benefits for mental stress claims. (Decision 483/11,)This will widen the number of claims being made, now that a physical event does not have to be the trigger for the mental stress claim. This opens the door for a variety of circumstances under which an employee might be able to receive compensation. It is estimated that 98% of mental stress claims would have been rejected prior to this decision, due to the absence of a physical threat.

The case that changed the nature of eligibility for mental stress benefits involved a female education assistant who sought benefits after she was falsely accused of striking a Grade 5 student in class. This individual had been an educator for more than 20 years, and was suspended while the school investigated the allegation.  She was reinstated, however the worker’s physician reported that she experienced flashbacks of the moment of her suspension and avoided children, schools and playgrounds. The incident triggered memories of sexual and emotional abuse she experienced in her childhood. She was subsequently diagnosed with major depression. The tribunal found that the events she experienced were “objectively unexpected and traumatic” resulting in a disabling psychological condition.

Howard Levitt from Levitt law firm in Toronto agreed that “an allegation like that in the context of a teacher can lead to several major repercussions: one she could be criminally charged; two she could be precluded from ever teaching again…and three her reputation will be destroyed in newspapers, articles and otherwise, so there’s no question that what happened to her falls within the definition for traumatic mental stress benefits”.

While it has been long associated with mental health claims the board has decided that Post Traumatic Stress Disorder (PTSD) is no longer the only required diagnosis to qualify for benefits entitlement. To apply for traumatic stress benefits the claimant, must first be diagnosed by a physician with an Axis 1 diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  Any diagnosis under Axis 1 is acceptable such as general clinical disorders (PTSD), major depression autism, schizophrenia etc.

To be eligible for benefits the following must be proven:

• The event was identifiable
• The event was objectively traumatic and unexpected in the normal and daily course of employment

 Source: Canadian HR Reporter, January 30 2012 Author: Amanda Silliker

Reflections:

Increasingly we are seeing that worker’s compensation claims are no longer limited to physical injury, and now with Decision 483/11 mental health, depression and stress claims will become more common. They are often more complex and difficult to resolve vs. physical injury claims. Minimize the possibility of mental health claims in your workplace by encouraging wellness, and offering appropriate support programs.  The Great West Life Centre for Mental Health has a great website that offers workplace strategies for mental health.

If you have questions about handling a mental health claim, or managing a difficult claim please contact Anna Aceto-Guerin directly at anna@clearpathemployer.com or by phone 519-624-0800.

Recently we wrote about how Mondays have the highest absence occurrence and how it can be a sign of dissatisfaction and low engagement with one’s job.  Some studies are pointing to the reasons for absence as essentially boredom or employees who are feeling unfulfilled.  At the other end of the spectrum employers are seeing increase in absenteeism because employees are stressed and overwhelmed by workload or expectations. These seemingly benign absences can lead to more long term issues such as lost productivity, claims and litigation.

An article written recently on MSNBC Careers highlights another potential risk associated with being bored on the job-employees turning to alcohol to cope.

A study of 102 office workers in the UK concluded that 25% were bored at work most of the time and that those individuals suffered from chronic boredom resulting in more stress, more absences and a desire to leave the position.  A third of respondents indicated they were more likely to drink after a boring day of work.  Alcohol and substance abuse as a coping mechanism has the potential of entering the workplace when it becomes a habit for an employee. This presents higher risk of employee absence, potential workplace violence issues and may lead the employee to take unnecessary risks such as vandalizing, stealing or sabotaging searching for stimulation to cure their boredom.  

A sense of belonging and self- worth goes a long way to encourage engagement with your employees.  Assessing the mental health needs of your workplace and creating a pro-attendance environment are one of the many strategies we discuss in our upcoming Employee Absence Does Not Make the Heart Grow Fonder learning session.

How are you creating a pro-attendance healthy work environment? Join us on Wednesday February 15th at the Cambridge Chamber of Commerce where we will discuss strategies for managing employee absence.