By David M. Brown

As an employment lawyer, I regularly meet with people dealing with chronic work related stress. They often come in to my office with similar complaints, including anxiety, insomnia, elevated blood pressure and nausea. Many of them are clinically depressed and almost all of them are unhappy to varying degrees.

Often, these clients are confronting a toxic working environment ripe with petty grievances, passive aggression and almost always ineffective management. What may have started as an insensitive, fleeting comment can spiral into an unhappy, unproductive workforce with chronic absenteeism and high turnover.

Persons trapped in situations such as this often consult lawyers looking for recourse. After all, surely their ineffective and unsympathetic employer must have legal duties to provide for a healthy and happy workplace? The hard reality is that in British Columbia, employers have no legal duty to provide a happy workplace, with limited exceptions.

In BC, our legislation addressing occupational health are the OH&S regulations of the Workers’ Compensation Act. These regulations provide an over-arching duty of employee welfare, requiring every employer to “ensure the health and safety of all workers working for that employer.”

While OH&S does a very good job of regulating the physical health of employees, providing instructions on everything from the height of handrails to radiation exposure, it does very little to address workers’ mental health or their general well-being and stress management. In fact, until very recently, the only mental disorder compensated by WorkSafeBC was for a “sudden and unexpected traumatic event arising out of and in the course of employment” – for instance, a diagnosis of post-traumatic stress following an armed robbery.

In 2012, compensation for workplace mental disorders was expanded to include injuries “predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment.” While this sounds like a rather large expansion of existing coverage, the new language specifically exempted any illnesses “caused by a decision of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment.” This suggests that mental disorders primarily flowing from employer decisions such as workload, job assignments, hours of work and employee discipline are not compensated by WorkSafeBC.

Finally, in 2013 WorkSafeBC introduced its Bullying and Harassment Policy, creating for the first time employer requirements with respect to complaint procedures, processes for investigations and dispute resolution. Specifically, this policy identified bullying and harassment to be 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.” However, exclusions to bullying and harassment were again specified for employer actions relating to the management and direction of workers in the workplace.

These changes are certainly welcome and should help improve the mental health of workers, however it is also clear that these protections continue to have a very limited reach. There is also limited recourse outside of WorkSafeBC, and only in exceptional cases can an employee in a toxic work environment advance a constructive dismissal claim for breach of contract or a civil claim for depression and other mental injuries.

This continues to send a rather chilling message. While there are many business and moral reasons why employers should be concerned about the health and wellbeing of their workers, there are very limited legal obligations placed on them to ensure a happy and positive workplace.

David Brown, and colleague Alf Kempf, will be presenting on Employee Wellness, Rehabilitation and the Law at the Organizational Health and Wellness Summit in Kelowna October 22-23. HRMA, working in partnership with Diversified Rehabilitation Group, offers members a 10% discount on the Summit’s registration. Early bird pricing is available until September 10. Find out more.