Legislation passed in April 2016 creates a presumption that PTSD diagnosed in first responders is a work-related illness for police officers (including First Nations constables), firefighters, paramedics, emergency response teams, certain workers in correctional institutions and secure youth justice facilities, dispatchers of police, firefighter, and ambulance services,. This change means causation no longer has to be established as the new legislation assumes that PTSD arises out of the nature of the work performed by first responders. In the spring of 2016 the Ontario Government enacted the Supporting Ontario’s First Responders Act (Posttraumatic Stress Disorder) (the “Act”). The legislation amends the Workplace Safety and Insurance Act (WSIA), as well as the Ministry of Labour Act (MOLA) and is aimed at reducing the significant social impact of PTSD among first responders.
For purposes of the Act “police officers” entitled to the benefits conferred by the new legislation include: …a chief of police, any other police officer or a First Nations Constable, but does not include a person who is appointed as a police officer under the Interprovincial Policing Act, 2009, a special constable, a municipal law enforcement officer or an auxiliary member of a police force; The new legislation creates a presumption that PTSD in police officers and other specified First Responders arises out of and in the course of the workers’ employment, unless the contrary is shown. Given the recent passing of this legislation, the way in which contrary evidence will be determined remains to be seen. Medical records containing a diagnosis of PTSD prior to a worker becoming employed as a First Responder is an example of evidence that would likely call into question the presumption of work-related PTSD.
An exception to the enhanced benefits for police officers is found in subsection 14(7) of the WSIA that excludes benefits for PTSD where PTSD is found to have arisen from employee discipline or the employer’s actions or decisions relating to a worker’s employment. In other words, if an employee is disciplined, suspended, or terminated and develops PTSD as a result, that employee would not be entitled to benefits under the WSIA.
Amendments to the MOLA under Bill 163 allow the Ministry of Labour to direct Police Services Boards to create and report on a plan “to prevent post-traumatic stress disorder arising out of and in the course of employment at the employer’s workplace”. The Act provides little, however, in the way of detail regarding the scope or nature of a report on PTSD prevention initiatives. Prudent employers in the field of emergency services, Police Services Boards should be proactive and take steps to assess and implement ways to minimize the risk of PTSD among employees and reduce the stigma that all too often prevents first responders from getting the help they may need. Police Services Boards should consider reviewing policies and procedures with a view to preventing highly stressful incidents, managing cases of PTSD through peer support, counselling or psychiatric services, and providing modified work, if available, to ease transition back to work when an employee has been diagnosed with PTSD.
Managing PTSD effectively and putting useful safeguards in place could significantly reduce costs to the Police Services Boards.
In any event, the new legislation creates a duty for Police Services to minimize to the extent reasonably possible the risks associated with work-related PTSD, through prevention and realistic return to work strategies. Regardless of the automatic entitlement to benefits and new presumptions about PTSD, Police Services must be ready, willing and able to have Police Officers who are suffering from PTSD return to work and have a return to work plan in place to maintain them in or reintegrate them into their workplace. Police Services must also consider what strategies are available for reducing the prevalence and severity of work-related PTSD, including the availability of Employee Assistance Programs (EAPs). PTSD is but one of many mental illnesses that may arise out of the demanding and stressful work environment inherent to the field of emergency services. This legislation only recognizes PTSD and not other work-related mental illnesses but this limitation will likely diminish over time.
Once a police officer or other first responder is diagnosed with PTSD by either a psychiatrist or a psychologist, as described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), published by the American Psychiatric Association, the officer or first responder is entitled to WSIB benefits. The WSIB claims process is expedited because causation no longer has to be established as the new legislation assumes that PTSD arises out of the nature of the work performed by first responders.
The new legislation means police officers and other first responders recognized under the Act are entitled to quicker access to WSIB benefits along with resources and timely treatment.
Navigating the legislative and regulatory scheme under the WSIA is complex and each employee’s work-related disability is unique. Cheadles LLP has expertise in assisting police services with all areas of human resources law, including providing advice on compliance with applicable federal and provincial legislation.
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