There are increasing calls for governments to use regulatory legislation to require employers to provide employees with a psychologically safe workplace. The most recent development in this regard comes from the Canadian Standards Association (CSA) through a Standard prepared by it and the Bureau de normalisation du Québec. The Standard has been available in draft form since November 2011 and is expected to be published and released November 7, 2012.
The new Standard creates detailed and sweeping measures and systems through which employers are encouraged to assess and ensure the psychological health of employees. Employers should take note because the Standard broadens traditional workplace health and safety norms by measuring psychological health with reference to extra-workplace factors such as the employee’s ability to cope with the normal stresses of life and to make a contribution to his or her community.
The Standard presents an opportunity for employers to develop systems to protect and enhance this component of workplace health and safety. This may assist in stemming the ongoing tide of litigation and claims arising from allegations of bullying, violence, stress in the workplace in multiple forms – including wrongful dismissal, workers’ compensation claims, OHS reprisal complaints, and grievances among them.
The Standard will set out optimistic goals and processes for achieving "psychological health and safety" in the workplace. A psychological health and safety system will encompass policies, procedures, hazard identification, incident investigation and monitoring activities, and much more relating to the broadly-defined concept of psychological health and safety under the Standard.
The Standard presents challenges in that such steps will be voluntary. They will be expected in addition to all existing steps being taken to develop and manage occupational health and safety systems for “traditional” health and safety physical hazards, conditions, and substances. The Standard goes well beyond existing regulatory occupational health and safety regimes which currently require, in various forms in different Canadian jurisdictions, specific steps by employers to proactively prevent and respond to workplace violence and harassment. Full compliance will involve an extremely complex exercise, although we understand that the CSA will be emphasizing the need for each organization to consider step by step compliiance, or compliance as a journey, with full compliance as the ultimate goal.
We are of the view that requiring compliance with the Standard will present interesting challenges for OHS regulators should they choose to enforce the Standard through regulatory OHS provisions. Although compliance with the Standard, as with any CSA standard, is voluntary, it should be noted that numerous CSA Standards have been directly incorporated into OHS legislation across Canada, in which case they are fully enforceable by orders, directions, or prosecution. Right now, it is unknown if any jurisdiction will require compliance with the Standard through a specific statutory requirement. Legislative amendment can be a slow process. Even if a jurisdiction were inclined to statutorily mandate compliance with the Standard, once it is finalized, it could be some time before a specific requirement becomes law.
Employers should be reminded of the “general duty” provision that exists within OHS legislation across Canada. This duty requires employers to generally take every reasonable precaution to ensure health and safety in the workplace. Though there is some variance in the language of these clauses natonally, they could be used by OHS regulators to require compliance with the Standard without specific legislative change. If OHS regulators were inclined to enforce the Standard through these clauses, there could be little lag time between the publication of the Standard and a regulatory push to comply with it. Enforcement of the Standard through the general duty clause of OHS legislation may be challenging for regulators, however. Existing workplace violence and harassment provisions may present legal impediments to the enforcement of the Standard though a general duty provision in that it could be argued that the regulators have already established the reasonable precautions required by enacting specific OHSA requirements for harassment and violence prevention policies and programs.
The more detailed article linked here examines the Standard and its requirements, and a recently-published Action Guide for complying with the Standard.