There is a growing awareness of mental health issues in the workplace and increasing calls for the government to enact legislation to provide employees with a psychologically safe workplace. One of the most recent developments in this area is a standard prepared by the Canadian Standards Association (CSA) and the Bureau de normalisation du Québec.(1) The standard has been available in draft form since November 2011 and is expected to be published in its final form in early 2013.
The draft standard – the first in the world, according to the creators – sets out optimistic suggested goals and processes for achieving psychological health and safety (PHS) in the workplace. The draft standard requires employers, among other things:
- to draft a PHS policy;
- to develop and implement a system to implement that policy;
- to identify, assess and reduce the risk of PHS hazards;
- to investigate PHS incidents; and
- to monitor, audit and improve the PHS system.
These steps are in addition to existing steps being taken to develop and manage occupational health and safety (OHS) systems.
It is expected that the final standard, to be published in early 2013, will include some changes from the draft standard that was released, but no significant changes to the basic structure and obligations are anticipated. More compliance tools and models are expected to be provided with the final standard.
Compliance with the standard will be voluntary. It will not be legally enforceable, unless it is possible to enforce it under a general duty clause under OHS legislation or it is specifically incorporated into OHS legislation. It remains to be seen whether the standard will be incorporated into OHS legislation; 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 be an impediment to this method of enforcement, because such provisions arguably establish the level of reasonable precautions to be taken to protect workers.
Employers that plan to implement the standard may find guidance in Psychological Health and Safety: An Action Guide for Employers,(2) a detailed and practical publication of the Mental Health Commission of Canada intended to assist employers in complying with the standard. The guide lists actions that can be implemented to protect employees' PHS in the workplace.(3) The guide explains why each action is important, describes how that action may be implemented and lists online resources that are available to assist in the implementation of the action.(4)
While the standard is voluntary and presents challenges for implementation, given its complexity and the fact that it imposes obligations beyond existing OHS obligations, it also presents an opportunity for employers to develop policies and procedures to enhance worker health and safety beyond those required by existing OHS and human rights laws. These policies and procedures 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.(5)
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 (email@example.com or firstname.lastname@example.org).
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.
(2) Mental Health Commission of Canada, Psychological Health and Safety: An Action Guide for Employers (January 2012). The guide can be accessed at www.mentalhealthcommission.ca/SiteCollectionDocuments/Workforce/Workforce_Employers_Guide_ENG.pdf.
(5) A detailed analysis of the standard can be accessed at Heenan Blaikie's website at www.heenanblaikie.com/images/newsletter/enews/ohs/pdf/e-news-ohs_2012-10-18_EN.pdf.