Mental matters

“There is an increased willingness in the law to recognize this concept of mental injury. And a willingness to recognize that mental injury is created by conduct in the workplace,” explains Martin Shain, founder of the Caledon, Ont.-based Neighbour at Work Centre and author of two discussion papers on psychologically safe workplaces for the Mental Health Commission of Canada. “The kind of harm that is being contemplated now is more [about what] significantly affects a person’s ability to function normally at work or at home. Ten years ago, the law recognized only really outrageous acts of abuse that resulted in mental injury. [Now,] the whole thing has shifted toward a higher standard of care and a lower threshold of liability. It’s easier to get into trouble as an employer.”

In fact, the Mental Health Commission of Canada cites that between 10% and 25% of workplaces are characterized by conditions and environments that are considered “mentally injurious.” Occupational health physician specialists report that 50% to 60% of their caseloads are related directly or indirectly to mental health concerns.

In one of Shain’s papers, he refers to a case that went to the British Columbia Human Rights Tribunal (Bertrend v. Golder Associates, 2009) in which the tribunal didn’t deem medical evidence of clinical depression necessary in order for the employer to take steps to reasonably accommodate an employee at work. Simply a change in behaviour that would “trigger concern in a reasonable person” was needed. Shain writes: “The implication of this trend for employers is that they must pay particular attention to the presence of signs of mental disorder…even though once the condition is noted or strongly suspected, the nature and extent of the duty to accommodate the employee is still a very foggy area in the law.”

Mary Anne Baynton, a consultant in the field of workplace health and owner of Mary Anne Baynton & Associates Consulting based in Waterdown, Ont., says there are a number of cases that have gone to various workplace and human rights tribunals where employers have been ruled against—oftentimes with the order to pay compensation—for doing what they thought was within their rights.

“If an employee is overloaded with chronic, unreasonable work demands, a judge has said [the employer] should have known that [these demands] could cause mental stress,” Baynton says as an example, adding that employers don’t generally intend to create psychologically unsafe situations at work. It’s often a matter of simply not understanding the extent of the issue or poor communication between all parties involved.

On June 15, 2010, new requirements surrounding workplace violence and harassment came into force for Ontario employers.

In Bill 168, an amendment to the Occupational Health and Safety Act, workplace violence is defined as the “exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker; an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; and a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.”

The bill defines harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

When it comes to violence in the workplace, the impact on employees is clear. However, because the effects of harassment generally aren’t physical, it may be harder to spot or may even be taken less seriously in the workplace. Harassment can include bullying, offensive jokes, innuendoes, pictures or offensive and/or intimidating phone calls.

Under this new legislation, employers are now required to conduct a risk assessment for violence and harassment in the workplace and then develop policies addressing the identified risks and train staff on the new policies. By taking these steps, employers will be less vulnerable to legal action while showing their employees they are making physical and mental health a priority.

The business case
Having a psychologically safe and healthy workplace isn’t just the right or legal thing to do, it also makes good business sense. According to the Consortium for Organizational Mental Healthcare (COMH) at Simon Fraser University, scientific evidence shows that when businesses adopt policies and programs to address psychological safety and health, they incur between 15% and 33% fewer costs related to psychological health issues. Additionally, a 1998 study found the annual cost of mental health problems to the Canadian economy was estimated at $14.8 billion. More recent sources up that number as high as $35 billion. Two-thirds of these costs were borne by employers, and, as mental health problems continue to rise, the costs associated with them will only do the same. Sources say that mental health problems are expected to be the root of more than 50% of all disability claims administered over the next five years—making it even more pertinent for employers to address these issues now.

Taking action
Despite the number of legal issues that have been brought to the attention of judges and adjudicators across the country regarding workplace grievances, Baynton insists that having what the law determines is a psychologically safe workplace shouldn’t require extreme efforts on the part of employers.

“A psychologically safe workplace is one where people can come in, do the job they are hired to do and leave in the same or better shape than when they got there. It’s to do no harm,” she explains. “It doesn’t have to be Shangri-La, and it doesn’t mean people have to have their dream job, just that it’s mentally healthy and not causing psychological damage.”

One of the biggest challenges that plagues employers with mental health situations and their ability to make progress is the lack of communication from employees on these issues. Mental health is still stigmatized, and nobody wants to talk about it.

“If you have a broken arm or leg, everyone knows the next morning when you come to work in a cast. It’s visible,” says Steve Jackson, vice-president, HR, with the Workplace Safety and Insurance Board in Ontario. “One of the challenges we have with mental health and mental illness [issues] is the fact that there continues to be stigma, and, in many cases, people do not want to disclose that they may have a mental illness.”

He adds, “As an employer, you are sometimes lagging a little bit with your ability to intervene and assist, because you are not actually aware of the situation or the challenges that the person is going through. Sometimes you have to learn about it through behaviours or performances that cause the manager concern.”

Now that Bill 168 is in effect in Ontario, employers here should have already done—or be in the process of doing—workplace assessments (see “Legal Ease,” p. 29). For employers in other provinces, even if your legislation doesn’t specifically require you to do workplace assessments, the case has been made as to why you should. Baynton recommends looking at the possible solutions for any of the unsafe situations that have been identified and then engaging employees in creating and implementing them. Of course, what that solution is will be determined by the needs of your workforce. “The framework is the same, but there is no cookie-cutter approach,” she says.

One helpful source for employers is Guarding Minds @ Work, a resource developed by the COMH. Among other useful information and links to resources, it provides employers with 12 psychosocial risk factors known to have an impact on organizational health and the health of employees and indicates why each factor is important and how to improve on them.

They are defined as follows:
• psychological support;
• organizational culture;
• clear leadership and expectations;
• civility and respect;
• psychological job fit;
• growth and development;
• recognition and reward;
• involvement and influence;
• workload management;
• engagement;
• balance; and
• psychological protection.

On discovering that an employee has a psychological issue—be it a diagnosed mental illness or mental injury—Jackson says it’s critical to treat him or her as a person first and an employee second. “Before they’re an employee, they’re a human being. You have to treat them with respect,” he says. “Don’t focus on what their illness may be—such as bipolar disease, depression, anxiety—focus on what the employer can do to work with the employee to make sure they can be successful in their job.”

Vic Medland, president of group insurance with the Ontario Teachers Insurance Plan, couldn’t agree more. He says it’s often the case that employees don’t talk about their psychological issues with their supervisors and frequently go on to self-medicate, which can lead to more severe problems in the workplace such as substance abuse.

He says the main thing employers can do is to educate their employees on what is available to them and “put solutions in front of members as often as you can.”

This involves reminding your staff of the company employee assistance program and any resources you may have on your intranet. And, don’t hesitate to get your advisor or provider involved in educating members about the resources available to them.

No matter how psychologically safe our workplaces are, it will not eradicate mental illness—personal health, genetics and lifestyle all contribute to a person’s mental state and stability. An employer’s responsibility is to ensure the workplace is not the source of the problem. BC

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