By Sheryl Smolkin
Podcast interview of Dr. Martin Shain
Keeping employees from getting shot, stabbed and beaten to a pulp is no longer enough. Employers are now being asked to keep the workplace environment psychologically safe. The Canadian Standards Association’s proposed National Standard of Canada for Psychological Health and Safety in the Workplace standard is the clearest articulation of this newly emerging duty. (Click here for an overview of the CSA standard.)
Reporter Sheryl Smolkin recently sat down with Dr. Martin Shain, a leading proponent of the psychologically safe workplace who helped the CSA draft the standard, for a one-on-one. Here’s a look at what Dr. Shain had to say about psychological safety and its impact on employers and HR programs.
What Makes a Workplace “Psychologically Safe”
Q: In a recent webinar for Insider, you cited an emerging “psychologically safe workplace” duty. What did you mean?
A: In short, the duty is for employers to make every reasonable effort to protect the mental health of employees.
Q: What must an employer do to meet such a duty?
A: Specifically, the employer must take steps to allow no significant injury to employee mental health in negligent, reckless or intentional ways—basically, an extension of the current duty of due diligence that applies to physical health and safety to the sphere of mental health and safety.
Q: What do you mean by a psychologically unsafe workplace?
A: Typically when we think about mental injury in the workplace, we think about what I call the fruits of the poison tree, which are basically things like harassment, bullying, mobbing (or bullying by co-workers), discrimination and things like that.
Q: Can you list some examples of red flags that HR directors need to look out for?
A: The roots of the poison tree are basically made up of little things that lead to bigger things. Examples would include expecting too much of employees with no heed to psychological consequences, refusing to acknowledge an employee’s contributions or assign credit for achievements. I could go on and on.
Who the Psychological Safety Duty Covers
Q: Exactly who has a psychological safety duty?
A: In terms of awareness, understanding and care, those duties fall disproportionately on the employer and supervisory management. But they also apply across the board to everybody in the workplace in a position to affect an employee’s mental health.
Q: So the duty applies to co-workers as well?
PSYCHOLOGICAL DUTY & HR LAWS
Q: Why do you say that psychological safety is a legal duty? After all, there is no such thing as a “workplace psychological safety” law anywhere in Canada. The proposed CSA standard is the closest thing. But it hasn’t been adopted yet; and it’s just a voluntary standard.
A: That’s an excellent point, Sheryl. What you say is true. The reason I say psychological safety is a legal obligation is that a number of current laws adopted to deal with other issues—like employment standards or workers’ comp—are frequently being interpreted as requiring employers to ensure that the workplace is psychologically safe, i.e., civil, respectful and professional and holding them liable if they don’t.
Q: Can you list some examples?
A: There are at least 7:
1. Human Rights
Courts and human rights tribunals can award damages and require employers to take specific actions, e.g., rewriting harassment policies and educating staff, to remedy harassment, bullying and other forms of conduct that inflict mental injury when the victim is a person protected by the discrimination laws. So, for example, human rights laws would come into play when an employee suffers racial, religious, age, gender-based, disability or sexual orientation harassment.
2. Contract Law
Increasingly, courts and arbitrators are finding that every contract includes—either expressly or by implication—an employer duty to provide a civilized, respectful and professional workplace Conduct that causes mental injury committed or tolerated by an employer is thus a violation of the contract and potential grounds for constructive dismissal. (Click here to find out how supervisor bullying can lead to constructive dismissal.)
3. Employment Standards
Victims of constructive dismissal are deemed to have been terminated without cause and are entitled to notice or wages in lieu of notice under employment standards laws. And in one province, Québec, the provincial employment standards act actually includes a specific rule requiring employers to protect employees from psychological harassment.
4. Labour Relations Law
The implicit contractual duty to provide a psychologically safe workplace that I mentioned above has also been read into collective agreements at union workplaces by labour arbitrators. Thus, committing or tolerating psychologically unsafe behaviour becomes grounds for a grievance under the collective agreement.
5. Occupational Health and Safety Law
All Canadian jurisdictions require employers to protect employees from workplace violence, typically as an express or implied duty under OHS legislation. Several provinces, including Manitoba, Saskatchewan and most notably Ontario under recently adopted Bill 168, define “violence” broadly to cover not just physical acts and threats but mental ones such as harassing and bullying behaviours. (Click here to see how “workplace violence” is defined in your jurisdiction.)
6. Workers’ Compensation
Mental injury in the workplace can be deemed a work-related injury covered by workers’ comp. Historically, employees could only collect workers’ comp benefits by showing that the mental injury was the result of a discrete “traumatic event” that happened at work, e.g., watching a co-worker get killed. That’s a tough burden because we know that many mental injuries take time to develop and are the cumulative effect of many factors, not all of which happen at work. But last year, BC became the first province to move beyond traumatic event and provide coverage of gradual work-related mental stress. (Click here to find out more about the BC bill.)
7. Tort Law
Torts are civil lawsuits for damages based on case law rather than statute. Committing or tolerating conduct that causes an employee mental injury can subject an employer to liability for several kinds of torts, including negligence and negligent or intentional infliction of mental distress.
WHAT TO DO TO ENSURE PSYCHOLOGICAL SAFETY
Q: How do employers know if they have a psychological safety problem and what can they do about it?
A: The duty to provide a psychologically safe workplace has 2 parts: First, assess the risk; second, address it. To do the former, you need to “shine light in dark corners” by using formal surveys, reanalyses of existing surveys audits or in some cases in smaller organizations, just walking around and making sure that you know what’s going on, so you’ve got ongoing surveillance. (Click here for Checklists you can adapt to do an assessment. Also, see “Guarding Minds At Work” to find assessment tools.)
Q: What happens after the assessment stage ends and the addressing stage begins?
A: Specific measures—physical workplace design, safe work practices, etc.—depend on the results of the assessment and your workplace. Three general things to keep in mind:
- Don’t expect too much of people when you don’t know what they’re dealing with;
- Make it safe for employees to speak up and report problems; and
- Be vigilant for warning signals and adjust your measures accordingly.
Q: It sounds like employers need to educate their organizations and integrate the education into the culture. It would be pretty hard to tell your managers and supervisors what to do if you’re not walking the talk.
A: You’re absolutely right. I heard a speaker last week talk about culture by design or culture by default. What we’re looking at here is culture by design. To achieve it, employers must build into the culture a set of beliefs, values and understandings that support the idea that we’re going to be aware of how we affect one another, try to understand each other’s interests, claims and rights, and be more careful of one another as a result. All of that takes time. And, as you say, it has to be driven by senior leadership.
Dr. Shain has a a Doctorate in Law from the University of Toronto and a Diploma in Criminology from the University of Cambridge. He is currently a professor with the School of Public Health at the University of Toronto and an Adjunct Professor in the Faculty of Health sciences at Simon Fraser University.
He is also the director and founder of the Neighbour at Work centre, principal architect of Health Canada’s “Workplace Health System.” In addition, he developed the Stress Satisfaction Offset Score which has become a standard component of comprehensive workplace health promotion in Canada, written several key government reports and his client list includes top universities, insurance companies and private sector companies.