School Board Update
Recent Legislative Initiatives of Interest to School Boards
Date: April 25, 2018
Recent legislative changes in Ontario will have a significant impact on school boards. First, school boards will now be required to adopt a code of conduct that applies to trustees. Second, as of January 1, 2018, entitlement to benefits for chronic mental stress is compensable under the Workplace Safety and Insurance Act, 1997.
In addition to these changes, the Ministry of Labour and the Ministry of Education have collaborated on a Workplace Violence in School Boards: A Guide to the Law, which provides an overview of the recent changes to the Occupational Health and Safety Act and is customized to school boards.
New Regulation Under the Education Act Requires Every School Board in Ontario to Adopt a Trustee Code of Conduct
The Ontario government has filed O. Reg. 246/18 “Members of School Boards – Code of Conduct” under the Education Act, making it mandatory for every school board in the province to adopt a code of conduct that applies to trustees.
The regulation imposes several new requirements, including:
- school boards that do not have a trustee code of conduct must adopt one by May 15, 2019, and then review it every fourth year thereafter;
- school boards that have a trustee code of conduct must review it and make the changes that are required by May 15, 2019, and then review it every fourth year thereafter; and
- school boards must make the trustee code of conduct available to the public.
Section 218.2(1) of the Education Act currently states that school boards “may adopt a code of conduct that applies to the members of the board”. However, under s. 218.2(2), the Minister of Education has the authority to make regulations that do two things: (1) require school boards to adopt a trustee code of conduct, and (2) govern the “matters to be addressed” in those codes of conduct.
In filing this new regulation, Ontario’s Minister of Education has exercised her first power under s. 218.2(2), but not yet her second. As such, school boards should be prepared for further regulations prescribing content to be included in their codes of conduct for trustees.
Implications for School Boards
The vast majority of Ontario’s school boards already have a code of conduct that applies to trustees and has been made available to the public. This means that, for most of the school boards in the province, the key new requirement under O. Reg. 246/18 is that they must review and, if necessary, amend their codes of conduct by May 15, 2019.
If the Minister exercises her authority to prescribe content, then the core purpose of the review will be to ensure compliance with her direction. However, regardless of whether or not certain content is prescribed, this new review requirement presents an opportunity for school boards to reflect on the extent to which their core values and beliefs are reflected in their codes of conduct in a manner that promotes public confidence. This will also present a useful catalyst to consider any problems that have arisen previously in the administration of any existing policy.
Indeed, as discussed in the Good Governance Guide, a well-drafted trustee code of conduct can serve to promote public confidence in a particular school board by defining acceptable and unacceptable behaviours, encouraging integrity and high ethical standards, and setting out a clear framework that addresses professional conduct and responsibilities.[1] In other words, a code of conduct is a public document and every school board should ensure that its code reflects a genuine commitment to good governance.
Finally, in conducting this mandatory review, it would be prudent for every school board to consider whether its trustees and senior staff are due for a refresher on (a) the legal duties and responsibilities of trustees under the Education Act, and (b) the permissible sanctions for non-compliance with a trustee code of conduct.
If you have questions regarding the new requirements under O. Reg. 246/18 or trustees’ duties under the Education Act, please contact any member of Hicks Morley’s School Board Practice Group.
Workplace Violence in School Boards Guide Published
The Ontario government, through collaboration between the Ministry of Education and the Ministry of Labour, has published Workplace Violence in School Boards: A Guide to the Law (Guide).
The Guide has been developed further to the recent amendments to the Occupational Health and Safety Act (OHSA) relating to workplace violence and harassment. It is geared to the identification, prevention and appropriate response to workplace violence specifically in the context of school board workplaces. School boards must develop a workplace violence policy and at a minimum, review it annually.
Highlights of the Guide are set out below.
Risk Assessments
The OHSA requires all employers to assess the risks of potential workplace violence and conduct a reassessment as necessary, or when changes or events occur that warrant reassessment. For school board employers this does not mean an assessment of an individual or a student, but rather an assessment of the following:
- Nature of the workplace: the physical aspect of the workplace. This may include schools, field-trip locations, a school bus and or any other place a worker performs work for the school board.
- Type of work: activities performed in the workplace. This may include classroom teaching and supervising students (e.g. recess, lunch).
- Conditions of work: other aspects of the work including time of work and location.
The Guide identifies a “leading practice” for school boards in conducting these risk assessments. In addition to the nature of the workplace and type and conditions of work, school boards should also assess the physical environment (e.g. security and control of entry/exit points) and assess current measures and procedures.
Controlling Risks of Workplace Violence
If the risk of workplace violence cannot be eliminated, school boards must establish measures and procedures to control the identified risks. These may include physical environment controls, work practices, developing student safety plans and use of Personal Protective Equipment.
According to the Guide:
A student safety plan is a plan developed for a student whose behaviour is known to pose an ongoing risk to themselves, other students, workers or other people in general. It can serve as a crisis-response plan that outlines the roles and responsibilities of the workers in dealing with specific problem behaviours. The development of a student safety plan involves all workers who work on an ongoing basis with a student, as well as parents and the representatives from any community agencies working with the student/family.
Provision of Personal Information Regarding Persons with a History of Violent Behaviour
The OHSA requires school boards to provide workers with information related to a risk of workplace violence. However, school boards must take care not to disclose more personal information than is reasonably necessary to protect workers from physical injury.
Summoning Immediate Assistance
School boards are required to develop measures and protocols to summon immediate assistance. Examples of this include personal announcement (P.A.) systems or walkie-talkie systems. These measures must also be situation-specific. For example, a different method must be employed when on a field trip (e.g. a cell phone).
Reporting Obligations
School boards are subject to the OHSA, the Education Act and the Workplace Safety and Insurance Act, 1997. As such, school boards are required to report the existence of hazards, serious student incidents and illness or injury. The Guide sets out the specific obligations under each of these statutes.
Implications of the Guide for School Boards
As stated in the Guide, the Ministry of Labour and the Ministry of Education have developed the Guide to help school boards understand their responsibilities in complying with the OHSA.
Now is the right time for school boards to review their current workplace violence policy and identify gaps in accordance with OHSA and the recommendations outlined in the Guide. As always, your Hicks Morley lawyer will be pleased to provide assistance.
The WSIB Chronic Mental Health Policy: What School Boards Need to Know
Recent amendments to the Workplace Safety and Insurance Act, 1997 (WSIA) allowing for benefits for chronic mental stress arising out of and in the course of employment came into force on January 1, 2018.
Previously, only traumatic workplace mental stress was compensable under the WSIA. In 2014 the Workplace Safety and Insurance Appeals Tribunal (WSIAT) found that the exclusion of workplace chronic mental stress injuries from entitlement was unconstitutional. As a result, the Ontario Legislature passed Bill 127, the Stronger, Healthier Ontario Act (Budget Measures), 2017, which amended the WSIA to allow benefits to be granted for chronic mental stress injuries arising out of or in the course of employment.
Key Provisions of the New WSIB Chronic Stress Policy
School boards should be aware of the following key provisions in the new Workplace Safety and Insurance Board (WSIB) Operational Policy Document 15-03-14 Chronic Mental Stress (Accidents on or After January 1, 2018) (Policy):
- entitlement to benefits for chronic mental stress will generally result when the worker has an appropriate diagnosis and where the injury is caused by a substantial work-related stressor arising out of and in the course of employment;
- the appropriate diagnosis must be made in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) and by a qualified regulated health care practitioner;
- a work-related stressor is substantial where “it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances”;
- workers in jobs with a high degree of routine stress may also be entitled to benefits for chronic mental stress, e.g. where there is a consistent exposure to a high level of routine stress over a period of time;
- interpersonal conflicts will not generally give rise to entitlement for chronic mental stress benefits unless they amount to workplace harassment or they result in conduct that a reasonable person would perceive as egregious or abusive;
- the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor(s) arose out of and in the course of employment and was the predominant cause of an appropriately diagnosed mental stress injury; and
- predominant cause “means that the substantial work-related stressor is the primary or main cause of the mental stress injury.”
Implications of the New Policy for School Boards
To minimize workplace stress for school board employees and to reduce the risk of WSIB claims related to chronic mental stress arising in the workplace, school boards should consider the following:
- Ensure managers and administrators have ongoing comprehensive harassment training so they can identify issues at an early stage.
- Have an “open-door” policy and encourage employees to report any workplace stressors they are experiencing.
- Engage in a risk management exercise to identify workplace stressors and then take steps to reduce or eliminate them.
- Clearly document events giving rise to cases where mental stress is asserted.
- Consider whether there are modified work opportunities that take into account psychological restrictions.
- Review practices, policies, procedures to ensure that employees are protected to the extent possible from stressors, and correspondingly that employers are protected from potential mental stress claims.
For more information about these important changes to the WSIA, please contact any member of Hicks Morley’s School Board Practice Group.
[1] The Good Governance Guide is a joint publication by Ontario’s four school board trustee associations and the Council of Ontario Directors of Education. It is available online at: http://ontarioschooltrustees.org.
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