A stressful liability

Being stressed out can be a horrible feeling. It can affect your work and your personal life, and it can contribute to mental health issues. And when employees are feeling stressed out about their work, it can negatively impact the employer as well.

A recent survey of global executives found that the typical concerns of labour shortages and employee turnover topped the list of operational challenges they face, but third on the list is workplace stress – an issue that could engage legal liabilities as well as operational and people concerns.

If employee stress hasn’t been on employers’ radar, it should be now after more than two years of a pandemic. Another recent study found that nearly half of Canadians were more stressed to start 2022 than they were at the beginning of the pandemic, and physical and mental health is a top concern.

So what happens if an employee’s stress starts to get the better of them? What is an employer legally required to do?

In certain situations, an employee may be entitled to receive workers’ compensation benefits. The way stress is approached can vary in different jurisdictions, but in Ontario, for example, the province’s Workplace Safety and Appeals Tribunal found back in 2014 that it was unconstitutional to require work-related stress to be traumatic to be eligible for workers’ compensation benefits – this meant mental injuries were treated differently than physical injuries. The Ontario legislature followed this up by enshrining both traumatic and chronic work-related stress as eligible for benefits, effective Jan. 1, 2018.

Also in 2018, the Ontario Workplace Safety and Insurance Board (WSIB) introduced a chronic mental stress policy that included stress related to bullying, harassment, or other interpersonal conflict in the workplace as potentially eligible for benefits.

Normal stress and unexpected stress

However, for workers’ compensation claims, a mental injury from stress must have occurred in the course of employment and it must be outside of the normal stress that can be expected at work. The same applies to human rights, where stress caused by normal work factors is not a mental disability requiring accommodation.

In 2018, the B.C. Human Rights Tribunal dismissed a claim from a worker who said that her employer discriminated against her on the basis of mental disability by exposing her to harassment and bullying. There was no medical documentation of a disability and the tribunal found that the worker’s stress was the result of the employer investigating performance issues and her worry over her job – normal workplace stressors.

Similarly, a few years earlier, an Ontario firefighter was dismissed for too many absences without authorization and he claimed that he suffered from a mental disability. Although the firefighter had been previously diagnosed with chronic stress and had been on medical leave, he had been medically cleared for work and had not requested accommodation. The arbitrator found that his inability to deal with stressors in his personal life didn’t amount to a mental disorder and without medical evidence to the contrary, his absenteeism was culpable.

It might be a different story if an employee’s work-related stress isn’t normal or expected in their line of work. An educational assistant at an Ontario school was regularly abused by an eight-year-old special needs student, including physical attacks in the classroom. The worker was allowed to take occasional stress days, but the situation didn’t improve and the worker eventually had a meltdown one day. She was diagnosed with high blood pressure and depression. Her application for workers’ compensation was initially rejected because physical abuse from a student was expected in the course of her job duties as a special needs educational assistant.

An appeals tribunal disagreed, finding that her job description didn’t include “regular, targeted physical assaults” and her meltdown was an acute reaction to a buildup of stress. The worker was entitled to benefits, said the tribunal.

Whether it builds up over time or is a response to more sudden, extreme events workplace stress is becoming a bigger problem for employers. Stressed employees may not only be less productive and more likely to quit, they can also be a legal liability if the problem isn’t addressed. And that should be a concern not just for executives, but also HR, managers, and co-workers.