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There has been a great deal of media coverage in recent months regarding the effects of Posttraumatic Stress Disorder (PTSD) on “first responders” (i.e. police, fire, and paramedic personnel). It is generally understood that these professions, along with doctors, nurses, correctional officers, and military personnel are the most likely to experience PTSD as a result of their work.
PTSD is a mental illness caused by exposure to trauma, which may include death, the threat of death, serious injury, or sexual violence.[i] PTSD may impair the worker’s functioning, in both the social and work settings.
Alberta was the first province in Canada to implement legislation that permits “first responders” diagnosed with PTSD to access treatment under workers’ compensation legislation based on a statutory presumption (absent evidence to the contrary), that the PTSD is an illness that “arose out of and occurred during the course of the worker’s employment…”
As of January 1, 2016 PTSD is now also recognized as a work-related illness in Manitoba. The Manitoba legislation does not limit the PTSD claims to emergency response workers, but rather such claims are open to any worker who is eligible for workers’ compensation and has been diagnosed with PTSD.
In Ontario, the issue of PTSD as a workplace illness for emergency response workers has been covered extensively in the policing context by the Provincial Ombudsman and in the paramedic context by the City of Toronto Ombudsman; and it may soon also be recognized in law as a workplace illness. Bill 2 is a private member’s bill brought to Ontario Parliament by NDP MPP Cheri DiNovo. The Bill would amend the Workplace Safety and Insurance Act, 1997 to include the presumption that if an emergency response worker (police, firefighter, or paramedic) suffers from PTSD, the disorder “is an occupational disease that occurs due to the nature of the worker’s employment as an emergency response worker, unless the contrary is shown”. This represents a departure from the current regime where the burden is on the first responder to prove a link between the PTSD and the workplace.
Bill 2 passed first reading in July 2014. Second reading of the Bill has not yet been scheduled, and so it remains to be seen whether it becomes law.
If it does, the recognition of PTSD as a work-related illness may have a number of implications for Ontario employers. First, inasmuch as PTSD and related symptoms are usually associated with longer-term recovery and treatment timelines, employers would be likely to face more claims for lengthier periods of lost earnings. Second, because of the presumption that PTSD is work-related, it would be incumbent on employers to prove the absence of a link between the PTSD and an employee’s work, which may require providing significant psychiatric evidence and requiring the employee to agree to a medical assessment.
If Bill 2 does not pass, PTSD and other mental illnesses relating to work will continue to be covered under the Workplace Safety and Insurance Board’s Traumatic Mental Stress or Psychotraumatic Disability policies, which compensate employees who have suffered illnesses (physical or mental – including PTSD) as a result of a work-related event. Further, recent decisions may also be signalling a shift in the jurisprudence in the context of mental health given that the preclusion of WSIB benefits for chronic mental stress was deemed unconstitutional.
With Bell “Let’s Talk Day” upcoming on January 27 and Mental Health Week upcoming on May 2-8, the introduction of this Bill reflects the sentiment that explicit legislative protections, rather than existing policies, may be what is needed to address PTSD – and perhaps other work-related mental illnesses – in the future.
Parisa Nikfarjam and Andrea Lowes
About the Author: Toronto Employment Lawyer Parisa Nikfarjam regularly speaks to human resources professionals, educators, and business owners about employment law and workplace human rights issues. Parisa has designed and delivers interactive workshops on such topics as youth employment, harassment and bullying, and social media in the workplace.
About the Author: Toronto Employment Lawyer Andrea Lowes conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Andrea also assists her clients by providing workplace investigation and human rights training to staff at all levels. Andrea’s practice also includes workplace assessments and reviews.
[i] Canadian Mental Health Association https://www.cmha.ca/mental_health/post-traumatic-stress-disorder/