In April 2016, the Ontario Government passed the Supporting Ontario’s First Responder’s Act (Posttraumatic Stress Disorder), 2016. The Bill sets out proposed Act amends the Workplace Safety and Insurance Act, 1997 (“WSIA”) and the Ministry of Labour Act.
Once a first responder is diagnosed with PTSD by either a psychiatrist or a psychologist, the claims process to be eligible for WSIB benefits will be expedited, without the need to prove a causal link between PTSD and a workplace event.
Under the legislation first responders are defined to include firefighters, including volunteer firefighters and part time firefighters, fire investigators, paramedics, and police officers. The amendments would create a presumption that a first responder who is diagnosed with posttraumatic stress disorder is eligible for WSIA benefits as if the PTSD was a personal injury. For purposes of entitlement, the Act removes the need to prove causation or a link to the workplace, and creates the presumption that the PTSD arose out of and in the course of the worker’s employment unless the contrary is shown by the employer. Once diagnosed the WSIB claims process with be expedited to allow for faster access to benefits. However, workers will not be entitled to benefits for PTSD arising out of an employer’s decisions or actions relating to the worker’s employment including a decision to change the work, the working conditions or to discipline or terminate the worker’s employment.
The Ministry of Labour Act was amended to give the Minister the power to ask employers of the designated first responders to provide information relating to the employer’s plans to prevent PTSD arising out of and in the course of employment. The information may be used by the Minister to assess progress in the prevention of PTSD, to prepare a report on PTSD prevention plans, and “such other purposes as the Minister considers appropriate”. What those other appropriate uses might be remains to be seen. The Minister may also publish information collected from employers.
The legislation clearly puts the onus on employers to create PTSD prevention plans. There are no legislated requirements in respect of the scope and nature of the prevention plan, however, the plans could include such considerations as mental health assistance and evaluation where necessary, early intervention following possible trigger events, confidential assistance mechanisms such as available Employee Assistance Plans, early return to work strategies, reporting mechanisms, and wellness initiatives. The assistance of a mental health expert may be required.
The amendments do trigger labour relations considerations. The notion of early intervention and early reporting of possible PTSD claims may mean that employers need to revisit collective agreement requirements regarding absences from work, particularly those absences immediately following exposure to a traumatic stressor, medical assessments, wellness plans, accommodation agreements, and return to work protocols among other things. Attendance plans and claims management processes may require re-evaluation since PTSD claims should be moved to the WSIB stream. This means stopping the utilization of sick pay and insured disability plans. The contentious issue may be the rate of pay (sick pay versus WSIB benefits).
In our view, the development and implementation of prevention plans represents an opportunity for employers and associations to work together to develop positive employee mental health strategies. A bi-lateral approach may assist in overcoming traditional stigmas associated with the reporting of PTSD claims.
We are available to assist you and to respond to any questions that you may have as you consider the new requirements.
Please contact Peigi Ross or Ross Dunsmore for further assistance.
This article date does not constitute legal advice and represents only a summary of the issues.