How to fulfill your employer responsibilities to provide a psychologically safe workplace

Dec 04, 2013

Earlier this year, the Canadian Standards Association and Bureau de normalisation du Québec launched CSA-Z1003/BNQ 9700-803 - Psychological health and safety in the workplace. This national voluntary standard, available at no cost, provides workplaces with tools to measurably improve workers' psychological health and safety. On October 22, Dr. Martin Shain1 delivered a presentation on what led up to the standard, its possible effect on case law, and implications for directors, officers and senior leaders. The setting: an Ontario Workplace Health Coalition meeting co-sponsored by WSPS and the Canadian Centre for Occupational Health and Safety (CCOHS).

The bigger picture: how businesses benefit

In a preamble to Dr. Shain's presentation, WSPS president and CEO Elizabeth Mills described employee health as one of the lynchpins of organizational health. "We work every day to help our customers grow their businesses and we know they won't succeed in doing this unless they create workplaces that care for the whole employee - mind and body."

WSPS has been working with experts from the Schulich School of Business and drawing on research conducted by Towers Watson and Aon Hewitt. "This research shows that healthy organizations have a distinct competitive advantage," said Mills. "They have engaged employees who are motivated and are focused on performance, and they understand how to manage risk.

"Study after study shows that a strong health and safety management program leads to lower costs, improved employee relations, a greater degree of trust, and improved reliability and productivity," said Mills.

Nevertheless, in any given week at least 500,000 employed Canadians are unable to work due to mental health problems. This includes:

  • 355,000 disability cases due to mental and/or behavioural disorders,2 plus
  • 175,000 full-time workers absent from work due to mental illness.3

"A commitment to psychological health and safety, like physical health and safety, must be integrated into organizational policies and procedures and it must be completely supported by leadership and include the participation of everyone in the workplace. And that's a big undertaking," said Mills. "That's why the national standard for psychological health and safety in the workplace is such an important step. It provides us with a framework to create and constantly improve a psychologically healthy workplace."

What happens when workplaces don't look after employee mental health

Dr. Shain has been warning for several years already of a trend toward increasingly higher legal penalties against workplaces that fail to maintain a psychologically safe work environment. Employees in these workplaces have recourse to seven different branches of law, said Shain:

  • employment contract
  • employment standards
  • human rights
  • labour relations
  • law of torts (negligence)
  • occupational health and safety
  • workers compensation.

"The short story is that although each of these areas of law relates to mental health in its own way with its own set of rules and regulations and policies, underlying it all I thought I saw the evolution of a superduty of care that I call the duty to provide a psychologically safe workplace."

Employers' 4 major responsibilities

"As we reflected more upon the single duty to provide a psychologically safe workplace," said Shain, "it emerged as four major responsibilities."

  1. Be aware refers to employers assuming the contract of employment. It contains an implied promise for a psychologically safe system of work. "This means a promise to provide a standard of fair, civil and respectful conduct, and this is a duty that is non-delegable. You can't say, 'I've got the Good EAP Company to look after the casualties of the system,' or 'My insurance provider is responsible for the return-to-work process.' Sooner or later, the law will say it's down to you. You're the one who controls the quality and delivery of these services, and you have to be on top of that."
  2. Be fair sounds like a throwaway phrase, said Shain, "but there are philosophical and practical bases for it. Philosophically, it is based on a theory of organizational justice that says the foundation of fairness in the workplace is the basic legal requirement to recognize and accommodate, up to a reasonable standard, the legitimate interests and rights of others. The World Health Organization has said, for as long as I can remember, there's no health without mental health. And I think we're in a position to say there is no health without justice." Shain defined justice as organizational justice - how we act toward one another in the workplace.
  3. Be careful reflects the legal responsibility to avoid reasonably foreseeable harm. "This is at the core of what I call the superduty of providing a psychologically safe workplace, and more explicitly, a psychologically safe system of work," said Shain. "In a lot of ways, it's grounded in the culture of a specific organization, but in some ways it has to rise above that because it reflects social norms as well."
  4. Be vigilant means to be on the lookout for signs of conflict and dissension within the workplace. "There are lots of ways to do that - walking around and listening, or formally through surveys. Shain noted that we tend to blame supervisors or managers for the mental distress that people experience. "In fact, it's everybody… When you sift below the cases that involve managerial abuse, you find a culture that supports these types of behaviour… They become culturally embedded."

Shain described the psychological health and safety standard as a response to these four responsibilities, "a way that says, 'Here's how you fulfill this duty.'"

It does this, he continued, "by requiring that employers use a systematic approach to assess risks to mental health that reside in the way that people are managed and that work is organized… At the centre of the standard, there is a management system."

Shain took pains to note that the standard is based on consensus. "It was a multi-stakeholder process and involved employers, unions, and other stakeholder groups like academics and NGOs and private organizations involved in service provision." It also went through two public reviews and subsequent modifications.

Shain further noted that we often attribute peoples' distress to their supervisors or managers. "In fact, it's everybody. We need to remind ourselves that this isn't about management or supervision, it's about how we behave towards each other in the workplace generally."

How the standard could affect the law

First perceived as a response to evolving case law, the standard could now become an influencer, said Shain. "This much is being anticipated by prominent law firms across the country."

Shain identified four ways in which the standard could change case law.

Either of these two approaches would have the effect of incorporating the standard into existing occupational health and safety acts. Furthermore, placing mental health protection in the context of due diligence could have the added effect of criminalizing mental injury. "We don't know if it's going to happen, but employer-side law firms say there's a high probability it will. It's just a matter of time."

  1. "The most obvious way would be through due diligence… The standard could be seen as a specification for a psychologically safe system of work under the [occupational health and safety acts'] general duty clause." Shain cited a prominent decision by case arbitrator Owen Shime that involved the Toronto Transit Commission. "What he said was, 'As far as I'm concerned, the term "health" in every occupational health and safety act means mental as well as physical.'" No one has since challenged Shime's decision.
  2. The kinds of policies and training programs referred to in the standard could become part of the legal framework and be used to support a psychologically safe system of work, said Shain.
  3. The standard could be seen as specifying terms of the employment contract that require a safe system of work. "That would provide a more likely individual remedy for workers who felt they'd been mentally injured, by claiming their contract had been broken," said Shain. "The problem is, it's not restorative. Basically in that situation, you're done with your employer and they're done with you." However, this approach provides human rights tribunals with a definition of what a safe system of work look likes. "There are a few prominent cases in which the human rights tribunal has said to an employer, 'We're going to fix this situation where you screwed up by awarding damages, but we're also going to send you back to do redevelopment of policies, retraining of your managers, and you need to come back and tell us how you've done it in six months time.'"
  4. From a prevention perspective, the standard could affect worker compensation, said Shain. "By specifying what a psychologically safe system of work looks like, [the standard] will encourage any jurisdiction in Canada that doesn't already do this to rethink what its policies and practices on awarding compensation for cumulative or chronic stress are. Some jurisdictions have moved beyond that, like BC and Alberta. Ontario is in the middle of doing that, as is Nova Scotia."

Taking a proactive approach: implementing the standard as a preventive measure

"The standard presents itself as a way of avoiding all this," said Shain, "and not get caught up in all the nastiness of legal actions in the workplace. When all is said and done, any legal involvement is undesirable in the workplace. It's something that takes over a workplace… We talk about 'poisoned workplaces,' the fact that when somebody does get to the point where they feel they have to launch a lawsuit of some sort within a workplace, it contributes to the poison rather than taking away from it."

Liability implications for directors and officers

"Liability is creeping more and more toward the boardroom for mental injury," said Shain. "Directors and officers do need to be aware that they're responsible for creating a system where it's ensured that reasonable steps are taken to avoid mental harm." This is where the standard comes in, said Shain. It offers a ready-made system.

For a director or officer to prove that they exercised due diligence under health and safety law, they must establish that they

  1. created a system to ensure compliance with health and safety law
  2. gave instructions for implementing the system
  3. created a system to ensure that the Board of Directors received reports on operation and effectiveness of the system
  4. reviewed compliance reports that were provided to them
  5. were aware of industry standards in dealing with the risks faced by the corporation and met those standards, and
  6. reacted immediately to and rectified a system failure.

Implications for senior leadership

Shain also offered suggestions on how senior leaders can show due diligence:

  1. commit to the goal of psychological safety and health and follow through on it - set tone and define the desired culture
  2. act as role models - start and sustain the conversation about what psychological safety means and requires
  3. integrate existing mental health policies under one master psychological health and safety policy
  4. implement procedures for assessing and addressing risks to mental health at work
  5. ensure selection, hiring and promotion of managers and supervisors for basic interpersonal skills.

"To put it simply," said Shain, "senior leaders have to take the standard seriously and not treat it as a checklist. To realize the intention of the standard is that it's a transformative process… It has to go through and be led by the directing mind of an organization."

Watch Dr. Shain's presentation online in the form of an Ontario Workplace Health Coalition webinar.

How WSPS can help

WSPS offers a number of healthy workplace resources, ranging from the strategic to the tactical. See below for examples.

  • Healthy workplace downloads, including:
    • Creating Healthy Workplaces
    • Healthy Workplaces Journey to Excellence: The Complete Guide
    • Psychosocial Risk Management: What Every Business Manager Should Know
    • The Business Case for a Healthy Workplace
  • General Consulting - WSPS healthy workplace consultants can work with you to develop a planned, target-driven approach to creating a healthy workplace, including workplace mental health program development and implementation of the national standard with workplaces
  • E-learning programs on return to work, stress in the workplace and other topics

Additional resources

  • Great-West Life Centre for Mental Health in the Workplace offers free public resources, including information, strategies, tools and initiatives "to employers and organizations who recognize that a healthier workplace can improve their bottom line."
  • Guarding Minds @ Work, a comprehensive set of resources designed to protect and promote psychological health and safety in the workplace. GM@W resources allow employers to assess and address the 13 psychosocial factors known to affect organizational health, the health of individual employees, and the financial bottom line. Developed by researchers from the Centre for Applied Research in Mental Health and Addiction (CARMHA) within the Faculty of Health Sciences at Simon Fraser University. Resources available at no cost.
  • Mental Health Commission of Canada. The website includes many resources, including A Leadership Framework for Advancing Workplace Mental Health.
  • National Standard of Canada for Psychological Health and Safety in the Workplace.

Additional reading

Footnotes

1 Dr. Shain is a leading Canadian authority on workplace mental health and safety. On behalf of the Mental Health Commission of Canada, Dr. Shain wrote three discussion papers that formed the basis for the new national standard on psychological health and safety in the workplace. He was also a core member of the technical committee that developed the standard. Dr. Shain holds a Doctorate in Law from the University of Toronto, and is a professor with the Dalla Lana School of Public Health, Department of Occupational and Environmental Health, at the University of Toronto as well as an adjunct professor in Simon Fraser University's Faculty of Health Sciences. Dr. Shain is also principal of the Neighbour at Work Centre, a consulting agency in the area of workplace mental health and safety. He helps private and public sector employers and unions understand and meet their new legal obligations to provide and maintain psychologically safe workplaces.

2 Calculated from data in Dewa, Chau, and Dermer (2010), "Examining the Comparative Incidence and Costs of Physical and Mental Health-Related Disabilities in an Employed Population," and Statistics Canada employment data.

3 Calculated from data in Institute of Health Economics (2007), "Mental Health Economics Statistics in Your Pocket," and Statistics Canada - Labour Statistics Division (2011), "Work Absence Rates 2010."