February 19, 2016
PTSD in the Workplace and Proposed Changes to the Workplace Safety and Insurance Act, 1997
On February 18, 2016, the provincial government unveiled Bill 163, “Supporting Ontario’s First Responders Act (Posttraumatic Stress Disorder), 2016” (also known as “An Act to amend the Workplace Safety and Insurance Act, 1997 and the Ministry of Labour Act with respect to posttraumatic stress disorder”) as part of its strategy to prevent and mitigate the risk of PTSD in the workplace and to provide faster access to treatment.
Bill 163, if passed into law, will create presumptive entitlement to benefits (including treatment) under the Workplace Safety and Insurance Act, 1997 (“WSIA”) for first responders who are diagnosed with posttraumatic stress disorder (“PTSD”). The twelve (12) categories of workers intended to be covered by these amendments include: firefighters (including part-time and volunteer), fire investigators, police officers, members of a First Nations emergency response team, paramedics, emergency medical attendants, communications officers, workers in a correctional institution or place of secure custody detention, and emergency dispatch workers.
The presumption provides that for workers seeking entitlement to work related PTSD, the condition will be presumed to have arisen “out of and in the course of employment”, unless the contrary is shown. In other words, employers will still have the opportunity to rebut a worker’s entitlement to benefits. To qualify for presumptive entitlement, workers will be required to show that they fit within the list of occupations noted above and that they have been diagnosed with PTSD by a psychiatrist or psychologist. Workers will still not have entitlement for PTSD caused by an employer’s decisions or actions with respect to the worker’s employment, including discipline, pursuant to subsection 13(5) of the WSIA.
Workers with active PTSD claims and/or appeals at the Workplace Safety and Insurance Board (“WSIB”) and the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), or new PTSD claims, will be able to seek entitlement under the proposed new legislation. Section 22 of the WSIA (the six (6) month claim filing requirement) will be suspended, but a worker must file their claim within six (6) months of Bill 163 receiving royal assent. The Bill will not apply to workers whose claims have already been denied by both the WSIB and WSIAT (i.e. they will not be allowed to revisit their claims).
Bill 163 will also amend the Ministry of Labour Act to allow the Minister of Labour (or his delegates) to request and collect information with respect to employers’ (of workers covered by the presumptive entitlement) plans to prevent PTSD in the workplace, and to publish those plans.
Questions remain following the release of Bill 163 including whether the twelve (12) categories of workers correctly identifies who should be covered by the presumptive legislation, and further, whether the government should be looking to other provinces, including Alberta and Manitoba, for guidance on PTSD legislation.
We believe that Bill 163 contains many significant changes with important implications for many employers. If you have any questions about these proposed changes, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer or a CompClaim consultant.
For more information on new developments in Workplace Law, please refer to our website at: http://www.mathewsdinsdale.com/news-events/in-a-flash
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