Federal Government Launches Workplace Mental Health Standards Initiative

Since the economic burden of mental illnesses in Canada has been estimated at $51-billion per year, with almost $20-billion of that coming from workplace losses, the Mental Health Commission of Canada (MHCC) has launched a collaborative project with the Bureau de normalisation du Québec (BNQ) and the standards division of the Canadian Standards Association (CSA Standards) to create a voluntary national standard for mentally healthy workplaces. The standard aims to help Canadian employers support the psychological health and safety of their employees. According to the government, Canada is the first country in the world to develop such a standard.

A committee of health and safety professionals, labour representatives, executives, government representatives, experts in law and policy and other groups has been created by BNQ and CSA Standards to develop the standard. Funding for the project has been provided by Human Resources and Skills Development Canada (HRSDC), Health Canada, the Public Health Agency of Canada and Bell Canada. Specifically, the federal government is kicking in $325,000 for the study, and Bell is contributing $150,000.

There will be a 60-day public review process held in the fall. The completed standard is scheduled to be released in 2012.

Once the standard is in place, the BNQ and CSA Standards will jointly manage the standard development process and publication. The standard will be developed as a stand-alone National Standard of Canada (NSC).

What’s in it for employees and employers? According to the MHCC, the advantages of a psychological standard for employees include protection from psychological harm in the workplace and the promotion of psychological well-being. For employers, the business case in favour of the new standard rests on four main parameters: enhanced cost effectiveness, improved risk management, increased organizational recruitment and retention, and corporate social responsibility.

Is this initiative really needed?

• Mental health problems and illnesses are the leading cause of workplace disability in Canada, representing 15 percent of Canada’s burden of disease. A Canadian Medical Association study in 2008 indicated that only 23 percent of Canadians surveyed said they would feel comfortable talking to an employer about their mental illness.
• Health Canada asserts that one in five Canadians will suffer some form of mental health trouble in their lifetimes. The Canadian Mental Health Association includes as mental illnesses: mood disorders, like depression; bipolar disorder and seasonal affective disorder; anxiety disorders, like obsessive compulsiveness and phobias; eating disorders; attention deficit issues; schizophrenia; suicidal feelings; and psychoses. Health Canada adds alcohol and drug addictions to the list. And then there are workplace-specific ailments like stress and burnout.
• According to a 2009 Ipsos Reid survey, nearly one in five Canadians feels that their working environment is not psychologically safe. With more stringent criteria, the survey found that, in fact, up to three in ten employees may work in a psychologically unsafe environment.
• A 2008 survey of over 450 Canadian organizations conducted by Mercer in conjunction with the Canadian Alliance on Mental Illness and Mental Health found that mental health issues are a growing concern for employers. Almost 80 percent reported that mental health issues have increased in importance compared to three to five years ago. In Canada, mental illness is estimated to result in 35 million workdays lost every year, and low productivity related to mental illness adds significant cost to employers.

My co-worker, Adam Gorley, wrote an article last year titled, Employers facing a perfect storm of mental illness liability indicating that:

Mental health and legal experts want employers to know that if they want to avoid liability, they must act to prevent harm to employees’ mental health as they do to protect physical health. That’s the thrust of Dr. Martin Shain’s recent report, Tracking the Perfect Legal Storm: Converging systems create mounting pressure to create the psychologically safe workplace:

From a time no more than ten years ago, when only egregious acts of harassment and bullying resulting in catastrophic psychological harm could give rise to legal actions for mental injury, we have arrived at a point where even the negligent and chronic infliction of excessive work demands can be the subject of such claims under certain conditions.

The point being that in cases where an employee alleges that her or his workplace has led to a mental injury—either by directly causing an illness or by exacerbating an existing one—courts and tribunals are now more likely than ever to find in the employee’s favour and award significant damages.

The “perfect storm” in the title of Shain’s report is the fact that these claims are not only appearing under occupational health and safety or human rights laws, but across a broad legal spectrum that includes labour relations, employment standards, contract/common law, tort law (negligence), and workers’ compensation. Each of these areas imposes on employers a duty to provide a psychologically safe workplace, and employees and their counsel are taking advantage of them to present their complaints.

The report defines a psychologically safe workplace as “one in which every practical effort is made to avoid reasonably foreseeable injury to the mental health of employees”.

That might sound like an onerous duty, but it’s important to consider it in the context of the comparable duty of care employers owe with respect to general work safety, and also the new dialogue on disability and accessibility that is taking place across the country, as expressed for example by Ontario’s recent Accessibility for Ontarians with Disabilities Act. Employers are duty-bound to protect their employees from physical and psychological harm in the course of work, and, I know I’m repeating myself here, courts and tribunals are increasingly willing to redress employer negligence with financial awards.

Tracking the Perfect Legal Storm is a follow-up report to a lengthier discussion paper from 2009, titled Stress at Work, Mental Injury and the Law in Canada.

Furthermore, Senator Michael Kirby, the MHCC chair, says “setting standards for healthy psychological work environments won’t just help people, it will help the business bottom line.” He further stated that the current economic downturn should make employers even more eager to adopt voluntary standards for psychologically healthy workplaces that reduce absenteeism along with long-term disability and drug plan costs, while improving productivity.

Even if the employer didn’t want to adopt the voluntary standard as the right thing to do for the employees, it’s absolutely the right thing to do in business terms in terms of its impact on the bottom line,” he said. “You can make an overwhelming business case for it.”

While the standards will be entirely voluntary, they could provide potential support in legal cases involving psychologically abusive work situations, said Jacques Girard of the BNQ. “When a standard is set, it may be a voluntary standard, but it sets also the rules,” said Girard. “It is where the knowledge is at the moment, and it’s publicly available. So when something is before the courts, a public standard cannot be ignored.”

Then why not make it mandatory?

If employers must provide a psychologically healthy and safe work environment, and a respectful employment relationship from beginning to end…

If employers fail to consider the above risk challenges and complaints on the various legal fronts—alone or in combination—and are ordered to pay significant damage awards…

If the standard sets the rules…

Then why not make the standard mandatory?