7 Major Trends in Law Referring to Workplace Mental Health

Martin Shain, in his report Tracking the Perfect Legal Storm suggests that providing a psychologically safe workplace is no longer something that is simply nice to do, it is increasingly becoming a legal imperative. Changes in labour law, occupational health and safety, employment standards, workers' compensation, the contract of employment, tort law, and human rights decisions, are all pointing to the need for employers to provide a psychologically safe workplace:

1. Human rights – Courts and Tribunals across the country are increasingly adding scope and definition to an employer's obligation to reasonably accommodate mental illness in the workplace. Human rights agencies in some jurisdictions have gained increased powers to issue public interest remedies that may limit employers' rights.
    
2. Law of torts – In some provinces it has been held that a reasonably prudent manager should be expected to understand the effect their behaviour has on those who report to them. Failure to do so can attract liability for infliction of mental suffering. Standards vary across the country. Most jurists recognize that reckless and intentional infliction of mental suffering are actionable wrongs but disagree on the extent to which negligence is included in this framework.
    
3. Workers' compensation – In one province it has been held unconstitutional to administer and adjudicate claims for mental stress differently from those for physical injury. In another province, death benefits were awarded to the family of a heart attack victim resulting from mental stress to which managerial negligence contributed.
    
4. Occupational health and safety – There is an increasing recognition in at least two provinces that mental health and psychological safety are part of the responsibility to provide a safe system of work under OHS legislation. Assessing and addressing psychological risk is becoming part of the overall hazard identification and risk management process. Some provinces have added violence and harassment explicitly to their Acts.
    
5. The employment contract – No longer is the employment contract simply an exchange of wages for services. It has now been deemed by some courts to include implied terms for psychological comfort which go some way toward establishing the duty to provide a psychologically safe workplace within the context of the employment relationship.
    
6. Employment standards legislation – The Employment Standards developed under the Accessibility for Ontarians with Disabilities Act (AODA) and the Quebec standards concerning psychological harassment are contributing toward making freedom from harassment a normal part of the employment relationship.
    
7. Labour law – Even when the wording is not implicitly included, collective bargaining agreements have been deemed in some jurisdictions to contain the terms of relevant occupational health and safety statutes, which in turn have been held to include terms for the protection of mental health.

Please note: This is provided for the purpose of general information only and is not a substitute for obtaining legal advice.