Commentary: Presumptive legislation is not enough

At NUPGE, we are proud that our union has been playing such a strong role in removing the stigma against mental injury in the workplace and working to see that the supports people need are there when they need them.

By Elisabeth Ballermann, NUPGE Secretary-Treasurer

Ottawa (30 Jan. 2019) — One of the victories of the Canadian labour movement in recent years has been our successful efforts in pressuring provincial governments to adopt presumptive legislation for post-traumatic stress disorder (PTSD) and occupational stress, as well laws that outline an employer’s responsibility in developing an approach to preventing those types of injuries.

Pressure has forced provincial governments to enact presumptive coverage legislation

Presumptive legislation is supposed to allow for faster access to workers’ compensation benefits, resources and timely treatment. But, we are noticing in practice the law still leaves out some workers.

Presumptive coverage means that if a worker is diagnosed with PTSD and other mental injuries, the injuries are assumed to be the result of workplace trauma, thereby removing the onus on workers to prove that it was the result of some specific work-related events.

Among the membership of the Components of the National Union of Public and General Employees (NUPGE), this is particularly relevant to first responders, including sheriffs, emergency medical personnel and correctional officers, who experience job-related trauma.

Under such legislation once a worker is diagnosed with PTSD by either a psychiatrist or a psychologist, the claims process to be eligible for workers' compensation benefits will be expedited, without the need to prove a causal link between PTSD and a workplace event.

People still falling through the cracks

A diagnosis of PTSD, by definition, can only be made after symptoms have persisted for one month, so a substantial delay in accessing workers’ compensation benefits is still possible

Even though many provinces, not all, have presumptive legislation for PTSD, there are still people falling through the cracks. We are noticing cases in which employers are denying workers a return to work even when their physicians or psychologists and the Workers’ Compensation Board are saying it is okay.

Consider the lawsuit against Syncrude Canada filed by a former firefighter and paramedic. As reported by the CBC, Mike Swan "claims the company wrongfully denied him benefits and fired him after he was diagnosed with PTSD related to his job." A statement of claim filed December 19 in the Alberta Court of Queen’s Bench says that "Swan is seeking damages for lost compensation and benefits," and "improper paycheque deductions.... The suit is also asking for 'moral or aggravated damages for bad faith throughout the employment relationship' as well as for punitive damages."

In a statement reported by the CBC, Swan said: "Think about every mental health campaign that's going on right now. What are they telling us? Put your hand up. Ask for help," he said. "I asked for help. I'm still asking for help."

This case offers a number of lessons why presumptive legislation is not enough, and why more work still needs to be done regarding mental injury in the workplace.

It takes a lot of courage for injured workers to seek help. Any fear about losing their jobs creates an obvious disincentive for such workers to seek the help they need.

Workplace culture must support those with mental injuries

Second, more work needs to be done to remove the stigma around mental injury in the workplace.

We know that presumptive legislation is not enough. We also need a culture change in our workplaces such that employers will encourage and support these injured workers. We need a society that does not stigmatize people with mental injury or mental health problems.

At NUPGE, we are proud that our union has been playing such a strong role in removing the stigma against mental injury in the workplace and working to see that the supports people need are there when they need them. We have campaigned for presumptive legislation across the country to get injured workers the benefits they deserve. We will continue to work to ensure that the very benefits we have fought for are not perverted by preventing people from returning to work once they are ready.

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The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 390,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. — NUPGE