Law, policy and workplace mental health in Canada

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1 4 th Annual Canadian Congress for research on Mental Health and addiction in the workplace, Toronto, October 28 th -30 th, 2009 Law, policy and workplace mental health in Canada Katherine Lippel CRC in OHS Law University of Ottawa

2 Themes to be developed Law and policy for Prevention of mental health problems related to psycho-social risk (PSR) factors at work Compensation for disability associated with work-related mental health problems Return to work of workers suffering from mental health problems Implications for: Researchers Clinicians Regulators and system administrators Workplace actors including unions, employers and workers

3 Role of law and policy As instruments designed to reduce exposure to PSR factors and to promote just compensation and return to work As instruments that may indirectly contribute to the promotion of PSR factors at work Driving precarious employment Driving discrimination against workers with mental health problems Driving bad working conditions Producing mental health problems during implementation of policy choices

4 WHO: Workers health: global plan of action 11. The assessment and management of health risks at the workplace should be improved by: defining essential interventions for prevention and control of mechanical, physical, chemical, biological and psychosocial risks in the working environment. Such measures include also integrated management of...health-impact assessment of new technologies, work processes...» Endorsed at the 6th World Health Assembly, 23 May 2007

5 Top 10 emerging psycho-social risk factors (Delphi study of experts) Precarious contracts/unstable labour market Increased worker vulnerability/globalisation New forms of employment contracts Feeling of job insecurity Ageing workforce Long working hours Work intensification Lean production and outsourcing High emotional demands at work Poor work-life balance European Agency for Safety and Health at Work, 2007

6 New challenges related to precarious employment Employment strain Clarke, et al, IJLP, 2007 Fractured work teams Significance of on-call and part-time work in the increase of work disorganisation of nursing teams Seifert et al, IJLP, 2007 Temporary agency work When social exclusion is a core value of the employment relationship Underhill, 2008

7 Job insecurity and restructuring: a source of stress and presenteeism Quinlan, International Journal of Law and Psychiatry, 2007 Brun et al, IRSST, 2003

8 Gender issues Women are: in occupations that are more exposed to stressful working conditions Eurofound, 2007 the majority of complainants for psychological harassment and occupational violence CSST, 2009 / Brun & Kedl, 2006 more likely to have adverse mental health problems associated with precarious employment Kim et al, 2008 more vulnerable to inadequate policies on work-family balance Women and men perceive and interpret situations of harassment differently Salin, 2008 What is the predominant gender of inspectors, adjudicators and members of OHS committees in your province?

9 Symptoms of distress driving policy: work related suicide In France: 10 workers at Renault and Peugeot in workers at France Télécom, 2009 In Canada: Thébaud-Mony, 2007, 2009 work-related suicide: widows compensated for survivor benefits Lavoie, 2009

10 Symptoms of distress driving policy: occupational violence In Canada in 2004: 17% of all self-reported incidents of violent criminal victimisation (sexual assault, robbery, physical assault, homicide) occurred at work 12% of those incidents involved a co-worker aggressor In Ontario: De Léséleuc, 2007 Bill 168 (2009) proposes provisions on workplace violence including domestic violence in the workplace

11 Frequency of incidents of physical violence to personal support workers in long term care facilities Armstrong et al, 2009

12 So maybe Canadian residents of facilities are nastier than Nordic residents?

13 Maybe it s not the job itself but the working conditions (Armstrong et al, 2009) Canada Nordic countries Working short staffed on a daily basis Able to discuss difficulties with colleagues all or most of the time Report almost always feeling mental exhaustion at the end of the day 46% 15% 20% 54% 43% 11%

14 Evidence from the Fourth European Working Conditions Survey Workers in Nordic countries are more likely than workers from other European countries to belong to the «active work organisation» category The «active work organisation» category is characterized by high demands and high control, derived from the Karasek model. Parent-Thirion et al, 2007

15 Does policy contribute to the level of violence seen in Canada? Cost control measures in Canada: Cutbacks in budgets of health-care facilities Inadequate staffing Increased absence Increased understaffing The blue line on the diaper Policy questions that arise: Do OHS mechanisms exist to ensure enforcement of safe staffing levels? Are they implemented and enforced? Are there mandatory risk assessments done? If so, do they involve consultation of workers?

16 Legislative and policy strategies for prevention Policies examined General provisions addressing PSR factors Workplace violence Risk of physical aggression Psychological harassment Actors Labour inspectors Unions and employers Occupational health and safety committees

17 Occupational health and safety legislation and PSR Québec case law Right to refuse dangerous work when conditions are hazardous for mental health Justifying interventions by inspectors regarding psychological harassment Chagnon et Marché Bélair, 2000 Québec case law Right to refuse dangerous work when conditions are hazardous because of potential violence Insufficient training, insufficient staffing Institut philippe Pinel de Montréal, 2000 Proulx et Sherbrooke, 2007

18 Robot-Man: hearing voices General duty clause in OHS legislation empowers labour inspectors (CSST) to intervene to reduce psychosocial hazards Limitations on voicepicking technology Santé au travail, Oct. 2007

19 Challenges for the inspectorate Prevention of psycho-social risk factors requires different skills from those traditionally required of labour inspectors Ability to deal with emotional situations Intangibility of risk factors Staffing requirements: inspectors over-solicited Johnstone, Quinlan and McNamara, 2008

20 Legislation for prevention of workplace violence Canada: Regulations explicitly targeting violence in the form of physical or verbal aggression British Columbia, 1998 Canada OHS Regulations: Violence prevention in the Workplace, 2008 Bullying included as a possible contributor to workplace violence Nova Scotia, 1996 and regulations, 2007 Manitoba, PEI, Alberta Ontario, bill 168? Regulations targeting working alone

21 Prevention of workplace psychological harassment/mobbing/bullying Specific legislation on mobbing, bullying, moral and psychological harassment General legislation channels recourse in those provinces without explicit legislation: protection against unjust dismissal damages for negligence/intentional infliction of emotional distress

22 Psychological harassment: legislative initiatives Legislation adopted in Sweden, 1993: Ordinance on victimization at work. Finland, 2002: «violence, harassment and other inappropriate treatment» France, 2002: penal provisions in labour Code, governing moral harassment Belgium, 2002: «mandatory prevention organisation» Québec, 2004: employer responsibility for providing a workplace free of psychological harassment South Australia, 2005: OHSW legislation: penal provisions for failing to adequately manage workplace bullying Saskatchewan, 2007: health and safety administrative tribunal: psychological harassment

23 Harassment: how existence of legislation drives prevention Regardless of numbers of accepted claims, existence of legislation forces social partners to access information for prevention purposes Employers responsible for prevention Unions responsible for implementation of recourse for their members SCFP/CUPE, 2008 Cox, 2008

24 Prevention strategies of employers according to the size of the unionized workforce (CUPE-Qc) Cox & Lippel, 2008

Legislative and policy strategies for workers compensation Policies addressed Income replacement for workers with Disabling mental health problems attributable to violence and acutely stressful

25 Legislative and policy strategies for workers compensation Policies addressed Income replacement for workers with Disabling mental health problems attributable to violence and acutely stressful situations Disabling mental health problems attributable to chronic stress At stake: health care, income and support in RTW Actors Workers compensation boards Workplace actors: Employers, unions Health care professionals

26 Is workers compensation data a reliable measure? Evidence from Australia Overall job strain - population attributable risk for depression was 13.2% for males and 17.2% for females Estimation of 21,437 job strain attributable cases 696 accepted claims for «mental stress» in same year (2003) Population attributable risk based on epidemiological study showed that Workers compensation claims statistics underestimate job strain attributable depression by roughly 30-fold in Victoria, Australia Lamontagne et al, BMC Public Health, 2008

27 Why are compensation claims rates so low? Difficult compensation process Stigma of workers compensation claimants of people with mental health problems Under-reporting Cox and Lippel, 2008 Low acceptance rates Lippel, IJLP, 2007

28 Compensation for mental health problems attributable to workplace stress in Canada All jurisdictions compensate for mental health problems attributable to acute stress Five jurisdictions compensate for mental health problems attributable to chronic stress Yukon Nunavut/North West Territories Alberta Saskatchewan Québec

Chronic stress as work accident or occupational disease Necessary to demonstrate that the stressors, individually or cumulatively, go beyond the «normal» workplace

29 Chronic stress as work accident or occupational disease Necessary to demonstrate that the stressors, individually or cumulatively, go beyond the «normal» workplace stressors to which workers are exposed in the modern workplace. Rule applicable in several Canadian provinces Several jurisdictions in the United States and Australia

30 Higher success rate for acute stress in Québec

31 Compensation for mental health problems attributable to acute and chronic stress: Québec (CSST) Nervous shock: acceptance rates have remained constant: between 78% and 80% Other diagnoses: acceptance rates have remained constant between 20-22% Mental health diagnoses represent less than 1% of compensated claims in Québec.

32 Compensation for health problems attributable to workplace violence: Québec (CSST) Physical problems remained constant: between 94% and 96% No increase in claims over the period Average annual accepted claims: 1095 Psychological problems acceptance rates vary between 61% to 53%: Reduction coincides with an increase in claims following adoption of psychological harassment legislation in 2004 Average 70 p.h. accepted since 2004 Average 14 s.h. accepted since 2004 CSST, 2009

33 Acceptance rate in appeal: 357 cases in Québec ( ) Acceptance of claim for mental health problems in appeal: 29% psychological harassment cases 52% discriminatory harassment cases 52% other stress claims Lippel, Pistes, 2005

34 Are psycho-social risk factors acknowledged in case-law? 357 appeal cases from Québec subjected to discourse analysis (several thousand pages of reasons for judgement) No mention of Karasek or Siegrist Few explicit discussions grounded in literature of known PSR factors 91% of accepted cases were accepted as illnesses attributable to work accidents; 9% were accepted as occupational diseases.

35 Policy typologies regulating exposure to psycho-social risk factors Risk assessment/manageme nt systems OHS regulation labour inspection Anti-harassment legislation Workers Compensation Acute-Chronic stress No public policy mechanisms/tort law

36 Conclusions: for researchers Importance of policy context Trans-jurisdictional studies measuring prevalence of workrelated mental health problems and disability need to be more precise about the systems from which they draw the data used. Comparing British Columbia WCB data to that of Québec will lead to the erroneous conclusion that fewer British Columbians are disabled by mental health problems caused by work.

37 Conclusions for policy makers and organisations Policies and those who adopt and apply them need to be better informed by scientific knowledge with regard to psychosocial risk factors. Care should be taken in ensuring that policy does not promote unhealthy working conditions

38 Need to regulate? Avoiding mention of mental health issues in OHS and workers compensation policy will not make the problem disappear

39 For more information: International Journal of Law and Psychiatry, vol.30: 4-5, 2007 Canada Research Chair in Occupational Health and Safety Law University of Ottawa chairohslaw

40 This presentation was given at:

Alberta Occupational Health and Safety Act Highlights of changes effective June 1, 2018

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