Introduction
Draft standard
Standard compared to occupational health and safety law


Introduction

The Canadian Standards Association (CSA) has issued a new and surprisingly complex standard, setting out optimistic goals and processes for achieving "psychological health and safety" in the workplace. Policies, procedures, hazard identification, incident investigation and monitoring activities may be required, in addition to all of the existing steps being taken to develop and manage occupational health and safety systems. This update introduces and analyses the proposed standard.

The CSA, which develops standards for business, industry, government and consumers, released the draft standard(1) on November 1 2011 for a period of public consultation, which ended on January 6 2012. The final standard, which is expected to be published in early 2012, is intended to provide organisations with the necessary tools and guidance to achieve "measureable improvements in psychological health and safety"(2) for Canadian employees and prescribes specific steps for employers to take to develop and maintain psychologically healthy and safe workplaces. As currently drafted, the steps prescribed and obligations imposed by the standard are significantly broader than those currently imposed on employers under occupational health and safety and human rights legislation, and the breadth of the standard raises concerns about its viability for Canadian employers.

Draft standard

Policy on psychological health and safety and roles of workplace parties
The draft standard requires, among other things, that organisations draft a policy committing to the development, implementation, funding, continuous improvement and review of a systematic approach to managing psychological health and safety.(3)

In addition to supporting the implementation of the psychological health and safety system, "leaders" (those with "key responsibility for the organization's performance")(4) have special obligations to develop a "psychologically healthy and safe workplace" – one that "promotes workers' psychological well-being and allows no harm to worker mental health in negligent, reckless or intentional ways"(5) – by:

  • leading in a "positive way";
  • making psychological health and safety part of decision making; and
  • "engaging" workers to:
    • understand the importance of psychological health and safety and the risks of psychological health and safety hazards;
    • determine the effectiveness of the psychological health and safety system; and
    • identify workplace psychological health and safety needs.(6)

The standard requires organisations to engage "stakeholders"(7) to:

  • determine their psychological health and safety needs;
  • encourage participation in programmes to meet those needs and in the psychological health and safety system evaluation process; and
  • ensure that the results of the evaluation process are communicated.(8)

In order to encourage participation, organisations must provide time and resources, identify and remove barriers and train and consult with workers in all aspects of the psychological health and safety system associated with their work.(9)

Organisations must also educate stakeholders about stigma, psychological illness, psychological health and safety and psychological health and safety policies, and provide a process for input. In addition, they must inform external parties about psychological health and safety policies, monitor compliance with those policies and address any psychological health and safety issues that arise.(10)

Develop and implement psychological health and safety system
If there is an existing psychological health and safety system in place, the standard recommends that it be reviewed to determine whether it complies with the standard.(11) If there is no existing psychological health and safety system, an organisation must gather the necessary information to develop a psychological health and safety system.(12) There is no set information to be gathered; rather, the type and degree of information necessary will depend on the nature of the workplace and psychological health and safety goals.(13)

The standard requires organisations to set psychological health and safety objectives, develop a plan to meet those objectives(14) and, at least every three years, review the achievement of those objectives and whether a psychologically healthy and safe workplace is being achieved.(15) It also requires organisations to define minimum psychological health and safety requirements and provide training and support to workers and management to enable them to meet these minimum requirements, and to inform managers that successful performance requires maintaining a psychologically health and safe work environment.(16) The standard recommends that organisations develop and set goals to achieve a psychological health and safety vision while planning for the impact of psychological health and safety on worker health and organisation finances.(17)

Organisations are required to identify "hazards" – a potential source of psychological harm to a worker(18) – and to assess the risks of those hazards.(19) Once hazards are identified and assessed, the organisation must establish and maintain processes to eliminate or prevent their occurrence, protect workers and foster a psychologically healthy workplace.(20) They must also plan to manage changes that can affect psychological health and safety, and provide information, training and assistance to workers and stakeholders regarding those changes.(21)

The standard requires organisations to develop a psychological health and safety system implementation process that includes sponsorship from leaders, stakeholder engagement and change management principles.(22) To support implementation of the psychological health and safety system, organisations are required to provide sufficient resources for the system and to provide workers with sufficient authority and knowledge to fulfil their duties and integrate psychological health and safety in their work.(23)

Identify and investigate psychological health and safety incidents
Organisations must identify events where psychological illness or injury has or may occur to individuals and develop a process to respond to those event and to provide support, training and debriefing opportunities to responding personnel.(24) Organisations have similar obligations in relation to events that pose psychological health and safety risks at the organisational level without individual illness or injury.(25)

Organisations must also implement reporting and investigation processes for "work-related injuries, illnesses, acute traumatic events, chronic stressors, fatalities (including suicides), and [psychological health and safety] System incidents".(26) After an investigation, recommendations for psychological health and safety system improvements must be developed and communicated to affected parties and form the basis for corrective action.(27)

Monitor, audit and improve psychological health and safety system
Organisations must monitor psychological health and safety and the psychological health and safety system to determine, among other things, whether objectives are being met and hazards are identified, assessed and controlled.(28) Organisations must:

  • identify any new or inadequately controlled hazards;
  • expedite and record action taken to address those hazards; and
  • implement measures to prevent their recurrence.(29)

The standard also requires organisations to establish audit programmes to determine compliance with the standard and internal psychological health and safety system requirements, and whether the system is effectively implemented and maintained.(30) Management must ensure that documented corrective action is taken and that corrective actions and the results of the audit are communicated to affected workplace parties.(31)

Standard compared to occupational health and safety law

The standard aims to improve psychological safety, which is identified in the standard as synonymous with 'mental health' – broadly defined as a:

"state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community."(32)

The breadth of this definition is at odds with obligations under occupational health and safety legislation. Canadian courts and tribunals have not interpreted occupational health and safety legislation this broadly and in fact, have indicated that the purpose of occupational health and safety legislation is not to create a perfect workplace, but rather to ensure a reasonable level of protection for workers.(33)

The standard states that it has been developed in the "context of an existing and still emerging legal duty for the employer to demonstrate that all reasonable steps have been taken to provide and sustain a psychologically safe workplace"(34). It further provides that there is an "increasing recognition in at least two provinces" that psychological health and safety is part of the obligation to "provide a safe system of work under occupational health and safety legislation".(35) This appears to overstate occupational health and safety law, as currently no Canadian occupational health and safety legislation mentions or defines mental or psychological health and safety.(36) While the standard correctly identifies that some jurisdictions have added workplace violence and harassment provisions to occupational health and safety legislation, these provisions have not and do not technically require employers to provide a 'psychological safe workplace', which is defined as a workplace that "promotes workers' psychological well-being and allows no harm to worker mental health in negligent, reckless or intentional ways".(37)

Under federal jurisdiction, for example, employers are required, among other things, to:

  • identify workplace violence factors and assess the workplace for risk;
  • develop and implement a programme for identifying and preventing these risks;
  • educate employees on factors that contribute to workplace violence; and
  • provide a means to investigate reports of workplace violence.(38)

'Workplace violence' is defined as "any action, conduct, threat or gesture of a person towards an employee in their workplace that can reasonably be expected to cause harm, injury or illness to that employee."(39) This is the general model for workplace violence prevention requirements in Canada. It falls far short of the requirements to promote psychological well being and allow no harm to worker mental health. Obligations in relation to workplace harassment, which exist in only a few provinces' occupational health and safety legislation,(40) also fall short of the obligations in the standard. At the highest, these provisions apply to threats, conduct or gestures that may cause injury or illness, or a course of vexatious comment or conduct that is unwelcome. There is no reference to psychological health and safety, and no occupational health and safety statute includes an express obligations for employers to prevent harassment; rather, employer obligations are limited to creating policies and programmes and conducting training regarding these policies and programmes.

The definitions in the standard are also inconsistent with similar terms in occupational health and safety legislation. The definitions of 'hazard', 'harm', 'health', 'psychological health', 'psychological safety' and 'psychologically healthy and safe workplace' in the standard are broad and vary from the definitions that have emerged in Canadian occupational health and safety law. For example, no occupational health and safety statute defines a 'hazard' as a "potential source of psychological harm to a worker" or 'health' as a "state of complete physical, social and mental wellbeing and not merely the absence of disease or infirmity".(41)

In addition, the standard is inconsistent with the extent to which employers have traditionally been required to protect workers from mental or psychological safety risks. In fact, before the enactment of workplace violence and harassment provisions in occupational health and safety legislation, tribunals in Ontario specifically stated that statutory concepts of occupational health and safety may not have been sufficiently broad enough to encompass 'mental' or 'psychological' risks or 'harassment' in the workplace. While these comments must be tempered in light of the addition of workplace violence and harassment obligations in some occupational health and safety legislation, the Ontario Labour Relations Board has clarified that the harassment-related provisions in Ontario's occupational health and safety legislation do not include a positive obligation for the employer to ensure that the workplace is harassment-free or to investigate harassment complaints.(42)

While CSA standards are voluntary and have no legal force in their own rights, they are considered best practice documents in their subject-matter area and have the potential to impact on employers' legal obligations. The standard could become part of occupational health and safety law, either:

  • through references in occupational health and safety legislation, which would require specific amendments to enabling legislation or regulations to include references to the standard; or
  • as a result of being used by courts and tribunals to determine whether an employer has complied with the general duty clause in occupational health and safety legislation.

Every jurisdiction in Canada has a general duty clause in its occupational health and safety legislation that requires employers to take all reasonable precautions in the circumstances to protect the health and safety of workers.(43) In determining whether a particular step taken by an employer has satisfied the general duty clause, courts and tribunals will consider standards for health and safety promulgated by respected external sources (like the CSA), and accordingly it is possible that the standard could be used to interpret and inform employer obligations under the general duty clauses of occupational health and safety legislation.

The fact that the standard far exceeds the provisions of any current occupational health and safety legislation in its definitions, duties and responsibilities in relation to mental or psychological safety could have very significant long-term consequences for employers which have not met the extraordinarily far-reaching and stringent provisions of this proposed standard.

For further information on this topic please contact Cheryl A Edwards or Shane D Todd at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email (cedwards@heenan.ca or stodd@heenan.ca).

Endnotes

(1) CSA, Draft Standard CSAZ1003/BNQ9700-803-5 Psychological Health and Safety in the Workplace. A copy of the draft standard is available on request from the CSA.

(2) Mental Health Commission of Canada, "Public Consultation for Workplace Mental Health Standards Underway", available online at www.mentalhealthcommission.ca/English/Pages/Public_consultation_wmh.aspx.

(3) Standard, supra note 1, Section 4.2.2 (a) – (f).

(4) Standard, supra note 1, Section 4.2.3.

(5) Standard, supra note 1, Section 3 "psychologically healthy and safe workplace".

(6) Standard, supra note 1, Section 4.2.3 (a)-(f).

(7) 'Stakeholder' is broadly defined as "any person or organization within the workplace that may affect or be affected by, or perceive themselves to be affected by, the decisions or activities related to mental health and safety factors within the workplace" (standard, supra note 1, Section 3 "stakeholder").

(8) Standard, supra note 1, Section 4.2.4.1(a).

(9) Standard, supra note 1, Section 4.2.4.2.

(10) Standard, supra note 1, Sections 4.4.3 and 4.4.11.

(11) Standard, supra note 1, Section 4.3.2.

(12) Ibid.

(13) Standard, supra note 1, Section 4.3.3. The standard lists a wide range of resources that may be considered, including standards, codes, best practices, laws and regulations, scientific journals and worker engagement data.

(14) Standard, supra note 1, Section 4.3.6.1. Psychological health and safety objectives must be measurable, consistent with the psychological health and safety policy and based on reviews, data collection and the assessment of workplace factors (standard, supra note 1, Section 4.3.6.1).

(15) Standard, supra note 1, Sections 4.5.3.

(16) Standard, supra note 1, Section 4.4.7.

(17) Standard, supra note 1, Section 4.3.1.

(18) Standard, supra note 1, Section 3 "hazard".

(19) Standard, supra note 1, Section 4.3.4.

(20) Standard, supra note 1, Section 4.4.2.

(21) Standard, supra note 1, Section 4.3.7; The standard contains the following non-exclusive list of changes that may impact psychological health and safety:

  • the development of new products, process or services;
  • changes to work procedures, equipments, organisational structures, staffing, or suppliers; and
  • changes to psychological health and safety strategies and legal requirements (ibid).

(22) Standard, supra note 1, Section 4.4.4.

(23) Standard, supra note 1, Section 4.4.1.

(24) Standard, supra note 1, Section 4.4.8.

(25) Standard, supra note 1, Section 4.4.9.

(26) Standard, supra note 1, Section 4.4.10

(27) If the event were of such a nature that the development of improvements for the psychological health and safety system would be appropriate (ibid).

(28) Standard, supra note 1, Section 4.5.2. The performance monitoring and measurement must review the requirement of the psychological health and safety system and the following as applicable:

  • leadership engagement with the psychological health and safety system;
  • baseline assessment of psycho-social risk factors;
  • a baseline assessment of other workplace determinants of psychological health;
  • injury and illness tracking;
  • return-to-work programmes;
  • psychological and physical health risk assessments; and
  • aggregated analysis of the results of investigations or events (standard, supra note 1, section 4.5.2).

(29) Standard, supra note 1, Section 4.5.6. In developing protective and corrective action procedures, an organisation must consider input from:

  • psychological health and safety system monitoring;
  • workers and workers' representatives;
  • psychological health and safety system audits; and
  • management reviews (standard, supra note 1, Section 4.5.6).

(30) The programme must include criteria for auditor competency, the audit scope, the frequency of audits, the audit methodology and reporting (standard, supra note 1, Section 4.5.5).

(31) Ibid.

(32) Standard, supra note 1, Section 3 "hazard" and "health".

(33) See for example, Ontario (Ministry of Labour) v Sheehan's Truck Centre Inc, 2011 ONCA 645 at para 28.

(34) Standard, supra note 1, Introduction, lines 165 to 167.

(35) Standard, supra note 1, Annex E.

(36) While Quebec's Act Respecting Labour Standards (RSQ c N1.1) does define 'psychological harassment' and imposes obligations on employers to create policies, assess hazards and take reasonable action, this is not occupational health and safety legislation.

(37) Standard, supra note 1, Section 3 "psychologically healthy and safe workplace".

(38) Canada Occupational Health and Safety Regulations, SOR/86-304, Part XX.

(39) Canada Occupational Health and Safety Regulations, SOR/86-304, s. 20.2.

(40) Currently, only Manitoba, Ontario and Saskatchewan include definitions and obligations related to harassment in their occupational health and safety statutes.

(41) Standard, supra note 1, Section 3 "hazard" and "health".

(42) Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (OLRB) at paras 11 to 17.

(43) For example, the Canada Labour Code, RSC, 1985, c L-2, s 124 requires that "every employer shall ensure that the health and safety at work of every person employed by the employer is protected". In Alberta, employers are required by the Occupational Health and Safety Act, RSA, 2000, c O-2, s 2 to "ensure, as far as it is reasonably practicable for the employer to do so, the health and safety of workers engaged in the work of that employer...". In Ontario, employers must "take every precaution reasonable in the circumstances for the protection of a worker" (Occupational Health and Safety Act, RSO 1990, c O 1, s 25(2)(h)).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.