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FEATURE

Ready To Snap

Workplace stress has never been higher, but what can employers do to ease the burden?

By Ted McIntyre & Robert Thompson

While there are a bevy of recent studies to support the claim, you don’t need to conduct any research to know that workplace stress is on the rise. The modern economy has simultaneously reduced budgets and increased workload on employees whose stress levels were already higher than in the previous decade. The inevitable results have been more illness and absenteeism, lower productivity and a general souring of a workplace environment that typically thrives on dynamic, healthy, happy and driven individuals.

It can, of course, deteriorate beyond those bounds. According to the U.S. Department of Justice, there are an average of three to four supervisors killed each month in the United States. In fact, the term “going postal” was spawned on August 20, 1986, at a post office in Edmond, Oklahoma, where employee Patrick Henry Sherrill shot two of his supervisors en route to killing a total of 14 coworkers and injuring seven others, before turning the gun on himself. Sherrill believed he was about to lose his job.

Apart from the availability of guns, U.S. investigators have found that work-related stress, a smaller workforce, decreasing wages and the loss of job security are the main contributors to such violence.

But, for now, it’s simple productivity loss that concerns most employers north of the border. For just as stress is increasing, so too are petitions for stress leave from employees, which, in turn, are costing businesses millions of dollars in lost hours and productivity, not to mention the accompanying investigation, litigation and untold time spent pursuing the matter by employees and management alike.

The door may have been opened a little due to recent legislation, indicates Robert B. Reid, a certified labour law specialist with Lancaster, Brooks & Welch, LLP in St. Catharines. “One of the recent changes to the Occupational Health & Safety Act (Bill 168) deals with workplace harassment. We are watching to see the extent to which workplace stress may be the by-product of ‘harassing’ behaviour, justifying greater penalties,” Reid says. “Civil courts in wrongful and constructive dismissal actions are considering claims for ‘bad faith damages’ arising out of employer conduct. Since Honda v. Keays (2008), courts have been looking for evidence on which to justify the quantum of these claims, and the most common place to look is for medical issues, which are often stress-related. Quebec is the only place currently (at least when I last checked) that has legislation against psychological harassment, which again can
be the alleged cause of workplace stress.”

Reid blames the internet and email for the increased pace of work. Legislation hasn’t helped either. “The opportunity to require longer hours of work was reflected in the Employment Standards Act, 2000.  Downloading, off-loading and the pressure of international competition have increased the pressure on many workplaces, not to mention the results of staff reductions and job consolidation.”

Before the issue can be practically addressed, though, one has to comprehend it. “Everyone faces deadlines and crises, large and small,” Reid observes. “Most develop their own methods of handling that stress that suits their personality. And experts tell us that some ‘healthy stress’ is good for us—we thrive on it and may be energized and motivated by it. The difficulty arises when the level of stress rises to the point that we are overwhelmed by it, and in those situations, the human body may react negatively, both mentally and physically. We can consider that the negative stress felt in a workplace occurs when we can no longer handle or be energized by the pressure. It is the harmful physical and emotional response that occurs when there is conflict between meeting job demands and the control that the employee has over meeting those demands. When the demands of the job and the effect of the work environment exceed the individual’s capacity to adapt, and the person has little control over the situation, workplace stress results.

“The stress at work adds to what may be stressful situations outside the workplace (and beyond the employer’s control), such as death of a close relative or marital discord,” says Reid. “The outside factors can exacerbate the workplace issues. Women and single parents often feel additional stress based on the need to maintain their ‘domestic’ responsibilities and still develop successful careers.”

Drawing the line
But at what point does the employee have a legitimate case, and exactly how far can the employer push without risk of a lawsuit? To be sure, it’s not a black and white issue, particularly for employees who still need a job when all is said and done, advises Ed Canning, who practices employment and labour law at the Hamilton firm of Ross & McBride LLP.
“You can phone me up and say, ‘I have an employer who wants me to work more than 48 hours in a week,’ and I’ll tell you that you can refuse under the Employment Standards Act and they can’t take reprisal against you,’” Canning explains. “But then I’ll say that an employer will find a way to get back at you at some point.”

Canning says that over the economic downturn that commenced in late 2008, he’s had a huge influx of calls from employees seeking to clarify their position in their workplace against employer demands. That includes “an endless number of calls” about slashed salaries.

“When jobs are scarce they can say, ‘I know you’ve been here for 20 years, but we’re cutting back your salary by 20 percent,” Canning says. “The employee can sue for wrongful dismissal, or they sue for the loss of 20 percent over the notice period they should have given you. But the employee will say, ‘Then I’ll be out of a job.’ And I say they are right, so they need to suck it up. Employers have had an environment where they can impose cutbacks and salary rollbacks. They can really get away with it in the short term because of the economy.”
Reid echoes the sentiment that the current advantage is with the employer. “Although I expect that we will learn more through specific cases that percolate through the court system, Human Rights tribunals, arbitration boards, etc., my view at the moment is that the employee is usually at the mercy of the employer’s direction,” he notes. “Either work as required or quit or be fired (except where, in the unionized context, there is a right to grieve).

“That does not leave the employee without a legal claim, but he or she may be without a job. The right to refuse work is fairly restrictive, and it would be a stretch to prove that one’s safety is at risk based on a subjective claim of workplace stress. However, if a person could allege (backed up by medical authority) that excessive demands by the employer are exacerbating a pre-existing medical condition through the application of stress, then a stress leave (which would bring with it some anti-discrimination protection under the Human Rights Code) could well be an answer. More generically, people take medical leaves of absence frequently when the doctor authorizes such an action, often on the basis of stress, and presumably that is one of the risks the employer runs if the load is too heavy.”

John Wigle, who specializes in employment, labour and workplace law with the Burlington firm of SimpsonWigle Law LLP, says one big swing in the employees’ favour has been changes to the operation of the Ontario Human Rights Commission. Previously an all-encompassing operation, in 2008 the Human Rights Tribunal of Ontario was set up and given more authority to deal with workplace issues like discrimination or employees who have been terminated for mental illness or stress-related reasons.

Though Wigle is careful to say the tribunal hasn’t swung too far in favour of workers (“They aren’t anti-employer, but they are protective of employees,” he says), new legislation allows aggrieved employees to seek legal support from the Ontario Human Rights Legal Support Centre, an operation that supplies lawyers pro bono. Even if the employee’s case is unsuccessful, they have no obligation to cover their employer’s legal bills, which could be substantial, Wigle notes.

“Employees who have a chip on their shoulder can go a long way,” he says. “The complainant has access to a lawyer at taxpayer expense and doesn’t have to dip into their pocket. The applicant doesn’t have to worry about the legal bill, while the employer does.”

If the employee is successful, the employer can expect to pay more—often three or four times the amount they would have expected to pay only a few years ago. It isn’t unusual for damages to exceed $30,000, Wigle points out.

Many of these legal matters could be avoided if the employer would take the necessary steps to try to accommodate an employee’s mental or physical issues, Wigle says. “Some employers take a dim view of things like stress leave or depression and worry about productivity,” he says. “But there is a corresponding responsibility of the employer to try and accommodate that employee, such as bringing them back into the workplace in a graduated way so they can hopefully regain their full duties.”

However, if an employer doesn’t follow the necessary protocol, such as seeking letters from an employee’s treating physician, they could face a human rights issue.

“In that case, employers get whacked two ways: They lose on indignity, even if it isn’t malicious, and then they lose because they didn’t accommodate the employee,” Wigle says. “It is a growing liability for employers—both union and non-union.”

And the situation is deteriorating, claims Reid, who calls mental distress in the workplace the epidemic of the day.

“The last few years have seen a dramatic increase in the number and length of these claims with the related direct cost to employers,” he notes. “Employees who are off work must be replaced. Premiums for disability insurance and sick time costs have soared. Court actions frequently contain claims for mental distress… Probably the biggest cost is the hidden one:  the lost productivity from stressed-out workers who don’t make a claim, but keep working! 

“It’s likely that, if unchecked, the incidents will continue to rise, as will the attendant costs,” Reid continues. “While it is important to consider the issues to understand the potential claims, prevention is the best proactive approach.”

Canning and Wigle concur, suggesting that employers try to be as accommodating and open with their workers as is possible. Canning says employers often utilize a “culture of secrecy” when it comes to a company’s bottom line, leaving employees unaware of the struggles a business may be undergoing. If employees understand the difficulties a company faces, they may be more willing to accept longer work hours and wage cuts.

“I think employees have the expectation of honest and clear communication, and that’s more important when they’re (being driven harder),” Canning says. “It is always important, but it is more important now. It is more of a management issue than a legal one, but I spend my days talking about it.”

While employers hold the advantage given the current state of the economy, they would be advised to consider their company’s long-term performance when making salary cuts or asking staff to work extended hours, Canning cautions. Otherwise a company may well lose its best employees when the economy improves.

“It is always important for management to recognize contributions,” Canning advises, “but it is even more important when you’re asking for more and paying less.”

How employees can reduce stress
Kelowna-based psychiatrist and medical researcher Paul Latimer (castanet.net) suggests the following tips to help your employees minimize workplace stress and avoid the need for an eventual stress leave, while also offering guidelines for when a stress leave may be appropriate.

1. When attempting to minimize issues that are creating stress, deal directly with the source of the problem whenever possible. If there’s an interpersonal conflict, try to resolve the conflict with the other involved individual(s) or through a third-party mediated resolution.

2. If the stress is occurring because of problems with time management or too many tasks, your staff may need to arrange their schedules or talk with you when possible. In general, have them set realistic goals and time frames for work projects. This can help structure their day. They should make time for the most important tasks and not overbook their schedules.

3. Work meetings should serve a purpose and should only be held when it is important to have personal interaction. If a meeting is necessary, work with an agenda and set start and finish times.

4. Your staff must avoid the temptation to procrastinate. Have them break large projects into manageable smaller tasks and work on them one at a time. If they put something off until they are working with a very tight deadline, they will likely feel stress.

5. When stress does become overwhelming and affects an employee’s ability to work, a stress leave may be appropriate. But before that step, several considerations must be weighed. First, some companies are more understanding than others. Staff should consider their particular situations, including discussing options with you as an employer and also bring medical documentation, if possible. They must also determine whether it is really stress causing their workplace dissatisfaction or simply a dislike of their job. If it’s the latter, the situation likely won’t not improve after a stress leave.You should try to come to a mutual agreement about the terms of an employee’s stress leave, such as its duration and changes to the job that will help them upon their return.

6. Stress is not a diagnosable disorder and there are no Canadian rules governing stress leave. If stress is the result of a diagnosed anxiety disorder or other mental health condition, this would be covered under a disability leave and may provide coverage of an employee’s salary while they are away. Employers should have a protocol in place for dealing with stress leave requests and include criteria for such requests. Also, it helps to set up a way to transition the employee back to work after the leave by phasing in the workload and modifying the duties where necessary.

SYMPTOMS OF EXCESS STRESS
All other things being equal, employees may be experiencing any of the following symptoms as a result of workplace stress:

  • Feeling anxious, irritable or depressed
  • Apathy, loss of interest in work
  • Problems sleeping
  • Constant fatigue
  • Trouble concentrating
  • Muscle tension or headaches

 

Warning signs for employers

  • Absenteeism, particularly when there wasn’t an obvious example of previous illness. The employee may be attempting to cope by staying away.
  • More closed-door meetings among staff (happy employees usually talk in the open).
  • Change in physical condition. Is the employee losing weight and looking gaunt (and not merely becoming more fit), or are they perhaps gaining weight, or showing signs of alcohol, cigarette or drug abuse?
  • Unkempt, slovenly appearance. When someone stops caring about their appearance, it’s an obvious warning sign.
  •  Decrease in job quality. Whether the result of depression or overwork, an unusual number of mistakes on the job is another tell-tale sign.
  • Change in attitude (a poorer disposition and decreased com- munication between the employee and management or other staff members). If they don’t look you in the eye, they’re probably unhappy, and possibly already looking for work else- where. Conversely, are there more conflicts among staff than usual?

Preventing stress in the workplace
Build loyalty: Compliment and remunerate staff when they are going the extra mile or producing quality work or service. You can even officially note it in their employment records. You may not have funds for a raise, but contra or time off—or sometimes a mere pat on the back—will keep them happy and also confident that they’re appreciated and that their job security is not at risk. They’ll also remember it when the lure of other offers comes along in better economic times.

Communicate: If corporate funds are tight and the pressure is increasing, sharing the reality of the situation with employees and enlisting their advice to cut expenses and improve the bottom line—providing you don’t go so far as to scare staff away—can help create a team atmosphere.

Advise HR: If there are concerns with employees, notify the company’s or corporate human resources personnel so that they can begin to document the person’s behaviour. It may also help nip potential problems in the bud.

Create a healthy environment: You can’t simply tell someone to eat better and get a good night’s sleep. You need to provide them with the materials to do so. Invite a nutritionist in for lunch one day and have them circulate materials on foods that will provide energy and organic remedies to employee stress and insomnia.

Make time for play: Yes, time is shorter than ever, but whether it’s a company picnic, or going out together for lunch or drinks after work, employees will be more motivated, effective and cohesive when they have something to look forward to beyond the usual drudgery.



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