New Legislation in Effect! Are you ready for November 1st?
November 1, 2013 – WorkSafe BC Workplace Bullying and Harassment policies take effect
As of November 1st, BC employers, supervisors and workers will be operating under a new set of three legally binding WorkSafe BC policies. As an employer, you need to be aware of the “Employer Duties – workplace Bullying and Harassment (D3-115-2)” policy which sets out the reasonable steps an employer is expected to take to prevent workplace bullying and harassment. These steps include the following:
- developing a policy statement for your workplace
- informing workers and supervisors about the policy and steps taken to prevent/minimize harassment and bullying
- taking steps to prevent or minimize bullying and harassment
- developing and implementing procedures for workers to report incidents and complaints of bullying and harassment
- developing and implementing procedures for dealing with incidents and complaints including how complaints will be investigated
- annually reviewing the policy statement and procedures for reporting and dealing with incidents and complaints
- training supervisors and workers on definition of bullying & harassment
- recognizing the potential for bullying and harassment
- responding to bullying and harassment
- procedures for reporting complaints
- procedures for investigating complaints
How can we help?
As with most legislative changes such as this, the intentions are good but can be overwhelming to employers. Figuring out exactly what is required and implementing these changes can involve considerable time and resources. We simplify this process and ensure your organization is both compliant – and taking the necessary steps to truly create a workplace free of bullying & harassment. We will –
- Create the Policy, Process and Training programs that ensure you are meeting WorkSafe BC requirements.
- Ensure the new policies align with your organizational culture.
- Utilizing our unique, interactive process, maximize buy-in and create sustainable change.
Today’s changes to the legislation require all employers to be in compliance by November 1, 2013.
IF WorkSafeBC is notified of a complaint after November 1, 2013, and start the investigation process, they will require employers to prove that the necessary Policies, Processes and Training have been implemented. If they are not, they will issue orders to do so which will be part of the Inspection Report, and will become public record.
Your HR Strategy – Prevention
- A clear “Respectful Workplace” policy and procedures that includes the responsibilities of Employers, Supervisors and Employees as required by Worksafe B.C.
- Ensure the policy is communicated and that procedures are trained. Take steps to ensure a “Respectful Workplace” is a part of your company culture.
- Conduct a risk assessment to identify
- Job stressors – normal or potential for excessive intensity or duration
- Environmental high risk areas – safety sensitive positions, isolated workers, negative workspaces
- Interpersonal high risk areas – aggressive management styles, poor relationships, challenging clients/customers/vendors, “ticking time bombs”
- Human Resources high risk areas – discipline/termination, performance management, investigations
- Take steps to address issues arising from your risk assessment
- Start with a clear position description
- Ensure candidates are clear on job expectations and potential stressors
- Conduct thorough interviews and reference checks
- Respond to potential claims
- Don’t wait for a formal complaint
- Observe and listen for problematic behaviour
- Identify early warning signs
- Increased absenteeism
- Changes in demeanor
- Recognize and deal with problematic behavior even if no complaint
- Respond to complaints quickly and thoroughly.
- Ask for expert assistance when needed.
What is the Definition of Harassment and Bullying (WorkSafe BC)?
“Includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.”
Bullying and harassing behaviour may include (but is not limited to):
• verbal aggression or yelling
• humiliating initiation practices or hazing
• spreading malicious rumours
• calling someone derogatory names
How did we get here? Background on “Bill 14” policy changes.
On July 1st, 2012 new legislation took effect adjusting section 5.1 of the Workers’ Compensation Act. Through Bill 14, workers’ compensation has been expanded to include diagnosed mental disorders caused by significant work related stressors which include bullying and harassment.
Previously an employee could go on compensable leave due to mental stress only if the stress was diagnosed by a physician and caused by “an acute reaction to an unexpected traumatic event arising out of and in the course of employment”. It was found however that physical disability claims were being treated differently than psychological disabilities and that was found to be discriminatory, hence the changes.
In the new legislation, a mental disorder may be compensable if diagnosed by either a psychiatrist or a psychologist and if the disorder is:
- a reaction to one or more traumatic events arising out of and in the course of employment or
- predominantly caused by significant workplace stressor, including bullying and harassment, or a cumulative series of such stressors, arising out of and in the course of the workers employment
While it may be concerning for employers that Bill 14 provides for a broader entitlement for mental disorders, there are some important things to note:
- The diagnosis must be a mental or physical condition as per the American Psychiatric Associations’ Diagnostic and Statistical Manual (DSM) of Mental Disorders, and the diagnosis is made specifically by a psychiatrist or psychologist (not a general physician)
- The mental disorder must be found to be predominantly caused by events arising out of and in the course of employment
- Significant workplace stressor refers to excessive in intensity and/or duration
- Interpersonal conflict or interpersonal relations do not constitute harassment UNLESS threatening or abusive. The legitimate exercise of employer rights (ie change in job duties, setting expectations or deadlines, transfers, performance management, etc) also does not constitute harassment
How is a claim adjudicated?
The WorkSafe BC Board is responsible for the decision making process and for reaching the conclusions of the claim. They will be looking to answer these questions –
1. Is there a diagnosed mental disorder?
The Board may obtain expert advice to review the diagnosis and may obtain additional diagnostic assessments. The Board also considers all of the relevant medical evidence, including medical history and pre-existing conditions.
2. Were there one or more events, or a stressor, or a cumulative series of stressors?
The events or stressor(s) must be identifiable. The worker’s statements and response to the event or stressor(s) are considered; however, the Board also verifies the events or stressors through information provided by coworkers, supervisory staff or others.
3. Was the event or stressor(s) significant?
All workers are exposed to normal pressures and tensions at work which are associated with the duties and interpersonal relations connected with the worker’s employment. A workplace stressor is considered “significant” when it is excessive in intensity and or duration from what is experienced in the normal pressures or tensions of a worker’s employment.
4. Causation: Was the mental disorder predominantly caused by an event or stressor(s) arising out of and in the course of the worker’s employment?
There are two parts to this determination:
- Out of and in the course of the worker’s employment
- In addition to regular work day activities, this may include off work site events such as Christmas parties, work sports teams, social media, off duty conduct etc.
- Predominantly caused
Both parts of this requirement must be met in order for the mental disorder to be compensable.
5. Pre-existing Mental Disorders
Where a worker has a pre-existing mental disorder and claims that a traumatic event or significant work related stressor aggravated this pre-existing disorder, the claim will be adjudicated similar to other types of claims where a worker has a pre-existing condition.
Note: If the Employer does not agree with the decision, there is an appeal process.
Imagine creating a respectful workplace culture.
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