As awareness of mental health issues in the workplace grows, there have been increasing calls for government to enact legislation to provide employees with a psychologically safe workplace. One recent development in this area is the creation of the National Standard for Psychological Health and Safety in the Workplace. After several months of feedback from the industry and employers, the final version of the standard—prepared by the Canadian Standards Association (CSA) and the Bureau de normalisation du Québec, with funding from the Mental Health Commission of Canada, the federal government, Bell Canada and the Great-West Life Centre for Mental Health in the Workplace—is expected to be released in January 2013.
The draft standard, which its creators claim is the first of its kind in the world, sets out suggested goals and processes for achieving psychological health and safety (PHS) in the workplace. It calls upon employers to do the following:
- draft a PHS policy;
- develop and implement a system to implement that policy;
- identify, assess and reduce the risk of PHS hazards;
- investigate PHS incidents; and
- monitor, audit and improve the PHS system.
These steps are in addition to those being taken to develop occupational health and safety (OHS) systems.
It is expected that the final version of the standard will have some changes from the draft released in late 2011 for public consultation, but significant changes to the basic structure and obligations are not anticipated. More compliance tools and models are expected to be created to complement the final standard and help guide employers in implementing it within their workplaces.
The compliance question
Compliance with the standard will be voluntary. It will not be legally enforceable, unless it is possible to do so under a general duty clause in OHS legislation, or if the standard is specifically incorporated into OHS legislation. While it remains to be seen whether this will happen, many CSA standards have already been incorporated and are enforceable through orders, directions or prosecution.
It also remains to be seen whether regulators will attempt to enforce the standard through a general duty clause in OHS legislation, requiring employers to take every reasonable precaution in the circumstances. The presence of workplace violence and harassment provisions in OHS legislation could impede this method of enforcement because such provisions arguably establish the level of reasonable precautions to be taken to protect workers.
Additional help
Despite its voluntary nature, the standard presents an opportunity for employers that want to proactively develop policies and procedures to enhance worker health and safety beyond those required by existing OHS and human rights laws. Such changes, guided by the new standard, may assist employers in stemming the tide of claims of bullying, harassment, violence, psychological injury and stress made in civil, human rights, OHS, workers’ compensation and grievance proceedings.
Employers that plan to implement the standard may find guidance in Psychological Health and Safety: An Action Guide for Employers, which has been published by the Mental Health Commission of Canada. The guide lists actions that can be implemented to protect employees’ workplace PHS. It explains why each of these actions is important and how each one may be implemented, and it offers a list of online resources that are available to assist employers in the implementation
Read more about Psychological Health and Safety: An Action Guide for Employers in the January 2013 issue of Benefits Canada.
Shane D. Todd is an associate in Heenan Blaikie LLP’s National OHS & Workers’ Compensation practice.