Regulating Workplace Behaviour: Bill 14 LGMA June 12, Adriana F. Wills

Transcription

1 Regulating Workplace Behaviour: Bill 14 LGMA 2013 June 12, 2013 Adriana F. Wills

2 Agenda Criteria for compensation (historical) Current criteria Adjudication/Rehab Process Experience to date Workplace Bullying and Harassment Policy Effect on other workplace issues and claims

3 Section 5.1 of the WCA: Pre-Bill 14 Worker entitled to compensation for mental stress only if the mental stress was: 1) An acute reaction to a sudden and unexpected traumatic event arising out of or in the course of employment; 2) Diagnosed by a physician or a psychologist as a physical or mental (DSM) condition; and, 3) Not caused by a decision of the worker s employer relating to the worker s employment.

4 Section 5.1: Post Bill 14 Section 5.1 now provides compensation for mental disorders where: Mental disorder is a reaction to one or more traumatic events arising out of or in the course of employment; or, Is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors; Diagnosed by a psychologist/psychiatrist; Excludes employment decisions of worker s employer, but HOW communicated may create claim.

5 Claims Investigation Case Manager inquires into facts and history; May contact employer in a disputed case; May use Field Investigators for complex cases, esp. bullying and harassment cases

6 Adjudication If worker s claim flows from decision(s) of the employer claim is disallowed without further diagnostic process or investigation; If one or more traumatic events in the workplace, including bullying/harassment, may have occurred referral to psych (10-day turnaround); Has increased claims since all are referred as per above, at taxpayer s expense.

7 Factors in Adjudication Was there one or more events/stressor/ cumulative series of stressors which was traumatic, out of and in the course of employment? Does the worker have a DSM diagnosed disorder? Were the workplace event(s) the predominant cause of the mental disorder?

8 Some Definitions Traumatic = emotionally shocking, unusual and distinct from normal events, duties and interactions. Significant = excessive in intensity or duration compared to the normal pressures and tensions. Predominant Cause = primary or main cause

9 Predominant Cause? Think again.. Down-graded meaning of predominant ; Consider non-work-related stressors in a worker s life; Work-related stressors need not be the sole cause; Not necessary that the work-related stressor(s) outweigh all other stressors;

10 Claims: July 1/12-April 30/13 Allowed.304 Disallowed 717 No Adjudication Required..140 Pending 283 Rejected...5 Suspended..434

11 Mental Stress Claims Highest Industries: health care 26.98% transp/related industries 11.75% accom/food/service 8.34%

12 Comments and Challenges RTW posing a significant challenge, especially in cases of bullying; Most common conditions: anxiety, depression or other psychological conditions; Anecdotal information that disputing claim can increase length of absence; WorkSafe continuing to pilot treatment programs.

13 Exclusions from coverage Bill 14 excludes mental disorders caused by a decision of the worker s employer relating to the worker s employment including: Transfer; performance management; corrective measures, including imposition of discipline; reorganization and consequences of same; workload and deadlines; work evaluations; demotions, etc.

14 Caution on Exclusions How the employer s decision is communicated may create or support a claim; WCAT (March 13, 2013) berating of worker: God damn problem ; Talk to the hand ; yelling; abusive.claim WCAT (December 13,2012) proper communication of correction/discipline may cause emotional stress but is not compensable

15 WorkSafe BC Prevention Policy November 1, 2013 Obligation to take all reasonable steps to prevent where possible, or otherwise minimize workplace bullying/harassment; These include: Policy statement that bullying/harassment not tolerated; Specific steps to prevent;

16 WorkSafe BC Prevention Policy Procedure for reporting, including where bully is the supervisor or agent for employer; Developing and Implementing Procedures for addressing complaints: Investigations; What will be investigated; Roles and responsibilities of employers supervisors, workers & others; Follow-up; Record-keeping.

17 WorkSafe BC Prevention Policy Informing workers of the Policy and all steps to be taken in (b) above; Training supervisors/workers on: Recognizing potential for bullying/harassment; Responding to bullying/harassment; Procedures for reporting; Description of how employer will deal with incidents and complaints.

18 WorkSafe BC Prevention Policy Provision for annual review of first 4 requirements; Elimination of bullying/harassment of workers and supervisors Start now don t wait for Halloween there will be nowhere to hide.

19 Caution...there s more than one way to get you Bullying/Harassment or Discriminatory Action? Sec. 151 of the Act prohibits discriminatory actions against a worker for Exercising any right or carrying out a duty under Part 3 of the Act; Giving information regarding occupational health or safety to: the employer; another worker or the union; or an officer of the Board.

20 Next Step.. A worker making a complaint that the Employer has not been complying with the new policies is exercising a right under Part 3 of the Act; The complaint alleges the supervisor has engaged in bullying behaviour; The employer transfers the worker to separate the two pensions; Is that a discriminatory action?

21 Other Thorns. Multiple Investigations under WCB Board Field Investigator may be used in the claims context, esp. in complex cases; Board Prevention Officer may be involved to review the Employer s compliance with its obligations under the Board s new Workplace Bullying and Harassment Policy; and, issue enforcement orders where required.

22 Application of the Crystal Ball Increase in claims/costs; Difficulty in returning workers to work, where there has not been admission and expression of regret what will be next steps? Workers seeking coverage for work-related stress from insurance carriers are likely to be denied and redirected to WorkSafe BC; No-fault system v. faulty behaviour.

23 Other Risks and Challenges Organizational Structure silos ; Multiplicity of investigations and litigation: WCA; Employer Policy; Collective Agreement grievances; and, Human Rights Code complaints; Potential for conflicting conclusions and findings; Will Section 10 of WCA assist?

24 Section 10 of WCA No fault insurance system Quid pro quo employers are insulated from all causes of actions by or on behalf of injured workers, whether such claims arose by common law, statute, or contract. What is the extent of that protection?

25 Section 10 cases Gov t of BC/BCGEU (2002) safety boots SD No. 33 (Chilliwack)/BCTF Fifth Disease SD No. 61/BCTF Grievance on the same facts as claim for compensation Downs Construction Ltd/WCAT (Leave to Appeal to Supreme Court of Canada March, 2013)

26 The Challenges are not over. Accommodation WorkSafe BC has no authority to require RTW; can only cease payment; Vocational Rehab to RTW ASAP Employer must agree to RTW Plan Potential of intersection of WCA and Human Rights Code

27 Keys Prepare for implementation of Policy; Prevention: TRAINING TOLERANCE FOR BAD BEHAVIOUR IMMEDIATE AND EFFECTIVE CONSEQUENCES Consider objection to grievance and other claims

28 Keys If complaint pursuant to Human Rights Code, consider: application to dismiss/abeyance; Coordinate / integrate response to bullying/harassment allegations; Cannot ignore or avoid.

29 Your Questions?

30 Regulating Workplace Behaviour: Bill 14 LGMA 2013 June 12, 2013 Adriana F. Wills