Employers could get bloodied in battle against workplace violence

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Violence in the workplace has been in the spotlight lately, with the Ontario government passing new legislation and Manitoba looking at some tough measures that crack down on harassment and violence at work.

While it’s good to see governments going after things that endanger workers and workplaces, some of the measures could be cause for concern for employers, who will be have to follow some strict rules or face sanctions.

On Dec. 9, the Ontario legislature passed Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009. It was given royal assent on Dec. 15 and will come into force in June 2010. Some of the most notable items in the new legislation that put some pressure on employers are the stipulations that employers must draw up and post written policies on workplace violence and harassment and assess their workplace for risks of violence at least once per year. Failing to do so could get an employer in trouble, especially if a violent incident takes place.

The new law also requires employers to take “all reasonable precautions” to protect a worker if it becomes aware of a domestic violence situation that could expose an employee to injury at work. This is new territory for employers.

It raises the question of how far an employer can go in these circumstances. If it knows an employee has an abusive partner, where does its duty to protect the employee begin or end? Obviously, it could take steps to prevent the partner from entering the workplace through security measures. But what about the parking lot? Or just outside company property after work? What about a work-related function off-site, such as a holiday party or company picnic, which the partner attends? There seems to be a danger here of employers perhaps thinking something is out of their jurisdiction but then being found liable for not doing enough.

Another new element of Ontario’s legislation that has raised some eyebrows is the requirement to disclose information about a person with a history of violent behaviour to employees who work with that person. This requirement includes personal information if it’s “reasonably necessary” to protect employees from harm.

There will have to be a balance between the privacy of the person with past violence and the protection of employees. If a new hire had a conviction for assault in the distant past and the employer tells his co-workers about it, could it lead to a privacy complaint? If it doesn’t reveal this information, it would violate the law. Should the time frame be relevant? What about the seriousness of the past violent behaviour?

It also seems employers will be expected to know about a person’s past behaviour and whether there is any violence. A criminal records check would reveal convictions, but may not cover all of it. What if an employer is aware of past violent behaviour through unofficial reports or word-of-mouth? Is this sufficient information to warrant telling a person’s co-workers about it and thus invading his privacy?

With this new legislation in effect, Ontario employers will be facing more onerous responsibilities on preventing workplace violence. And it looks like Manitoba employers could be under the same microscope, as a private member’s bill has been introduced there that features similar tough requirements for employers.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a biweekly newsletter published by Thomson Reuters that looks at employment law from a business perspective. For more information, visit www.employmentlawtoday.com.

What do you think of workplace violence legislation and the obligations it puts on employers? Join the conversation by adding a comment.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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