On April 5th, 2016, the Ontario government passed Bill 163, the Supporting Ontario’s First Responders Act (Posttraumatic Stress Disorder), 2016. Bill 163 is part of Ontario’s new posttraumatic stress disorder (PTSD) strategy for first responders announced February 1, 2016. This strategy includes a number of initiatives to prevent and mitigate the risk of PTSD among first responders. Some of these initiatives are the creation of an advertising campaign to increase awareness about PTSD, and an online toolkit with resources for employers of first responders.
Upon Royal Assent, Bill 163 will come into force and amend the Workplace Safety and Insurance Act, 1997 (WSIA) to create a statutory presumption that PTSD diagnosed in first responders is work-related, unless the contrary is shown. This will facilitate access to worker’s insurance benefits and treatment for such workers. For employers of first responders, Bill 163 may have significant consequences in terms of both the additional costs arising from expanded benefit entitlements, and the onus of rebutting the statutory presumption of entitlement, if the PTSD is not work-related.
Bill 163 has undergone a number of changes by Standing Committee since its introduction in February. For the most part, the changes introduced new classes of workers that would be subject to the statutory presumption. These include members of an emergency response team, ambulance service managers, and workers involved in dispatch. The final version of Bill 163 now captures the following workers:
- firefighters (full-time, part-time, voluntary) and fire investigators;
- police officers;
- members of an emergency response team;
- emergency medical attendants;
- ambulance service managers;
- workers in a correctional institution, a place of secure custody, or a place of secure temporary detention; and
- workers involved in dispatch.
Bill 163 requires the PTSD diagnosis to be provided by a psychiatrist or psychologist in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) published by the American Psychiatric Association. For pending claims and appeals, and new claims commenced with six months of Bill 163’s effective date, the diagnosis of PTSD can be consistent with the previous edition, DSM-IV.
The statutory presumption set out in Bill 163 will apply to new and pending WSIB claims but not to any claims involving PTSD that have exhausted the appeal process. For former first responders, the statutory presumption will apply, provided that they worked in an occupation covered by the legislation within the 24 month period before the legislation came into force, and provided that the PTSD is diagnosed within 2 years before or after the legislation comes into force.
The new legislation will also amend the Ministry of Labour Act. Under these amendments, the Minister of Labour is authorized to direct employers of first responders to provide information to the Minister relating to the employer’s plans to prevent PTSD at the workplace. The Minister may use the information provided to assess and report on progress in the prevention of PTSD in relevant workplaces and such other purposes as the Minister considers appropriate.
As noted above, Bill 163 may lead to significant increased costs for employers of first responders. In addition to the new hurdles such employers will face in rebutting the statutory presumption where the PTSD is not work-related, the presumption will operate to increase loss of earnings benefit awards. Employers may also face increased absences among the workforce. Employers of first responders can mitigate the impact of Bill 163 by reviewing their return to work policies and their accommodation/work modification policies to ensure that workers suffering from PTSD are returned to work quickly and with the necessary workplace supports and modifications.
Employers may take some comfort from the fact that Bill 163 does make it clear that workers are not entitled to insurance benefits for PTSD if the PTSD is shown to be caused by decisions of the employer relating to the worker’s employment. Such decisions include changing the work to be performed or the working conditions, imposing discipline, and terminating of the worker’s employment. Bill 163’s exception in this regard is consistent with existing section 13(5) of the WSIA which exempts from coverage mental stress claims if the mental stress arises from decisions of the employer.
For further information please contact Paul Lalonde at 613-940-2759.