Ontario to protect workers from violence

Domestic violence and harassment also in legislation
By Shannon Klie
|Canadian HR Reporter|Last Updated: 05/19/2009

Nearly 18 months after the inquest into the murder of nurse Lori Dupont by her ex-boyfriend and colleague at Hôtel-Dieu Grace Hospital in Windsor, Ont., the Ontario government is proposing new occupational health and safety legislation to protect workers from violence and harassment on the job.

Five other provinces have already included violence in occupational health and safety standards and Ontario, the country’s largest province, has lagged behind for too long, said Glenn French, president of the Toronto-based Canadian Initiative on Workplace Violence.

“I’ve always been shocked and somewhat dismayed that the Ontario government took so long to get into this issue,” he said.

Bill 168, an act to amend the Occupational Health and Safety Act, will require employers to develop policies and programs to help prevent violence and harassment at work and allow workers to refuse work if they believe they are at risk of violence on the job.

Employers would also have to report to the Ministry of Labour if a worker is unable or refuses to work or requires medical attention because of an instance of workplace violence. The ministry would then be required to send investigators to the work site.

“It will change the climate in the workplace so everybody will know that violence would not be tolerated in the workplace,” said Minister of Labour Peter Fonseca. “For too long, employment standards, occupational health and safety standards, had not kept up with the pace of the workplace.”

The legislation defines violence as any attempted or actual physical force in the workplace that causes or could cause physical injury. It does not include a threat of violence, which is included in the definition of violence in Alberta, British Columbia, Manitoba, Saskatchewan and Prince Edward Island.

But employees who feel they are at risk of violence because of threats can still lodge a complaint with the ministry and trigger an investigation, said Fonseca.

For harassment, employers would be required to have a policy and procedure for reporting and investigating complaints. The legislation doesn’t include a right to refuse work and employers aren’t required to contact the ministry when there is a complaint. However, ministry inspectors can visit workplaces to ensure employers have a harassment policy and procedure in place, said Fonseca.

Manitoba, Saskatchewan and Quebec have stricter obligations around harassment and Ontario’s weaker stance has been pointed out by both provincial opposition parties.

Bill 29, a private member’s bill introduced right after the Dupont inquest, calls for more sweeping changes and could spur changes to the harassment provisions in Bill 168, said French.

“I look at this as a first reading, it’s a little watered down,” he said. “I imagine it’s going to be toughened up a bit.”

Unique provisions

While the proposed legislation isn’t as broad as some other provincial legislation when it comes to harassment, it does include two unique provisions, said Cheryl Edwards, partner and lead in the occupational health and safety and workers’ compensation practice at law firm Heenan Blaikie in Toronto.

First, the legislation would require employers to disclose to an employee if she will work, or come into contact, with someone with a history of violence. Second, employers would also be required to take reasonable precautions to protect an employee from domestic violence in the workplace.

“There are no provisions that directly require the employer to respond to an event of domestic violence nor are there provisions that require the employer to give personal information about somebody who might be a danger in the workplace in any other jurisdiction in Canada,” said Edwards.

Some of French’s corporate clients are especially concerned about the domestic violence provision. But the provision doesn’t require employers to uncover domestic violence. It only requires employers, when they become aware of the risk or reasonably ought to be aware of it, to take measures to ensure employees’ safety on the job, he said.

“There is the belief, in some people’s minds, that this is a personal issue that you need to resolve but we know from Lori Dupont that personal issues come into the workplace with lethal results,” he said.

One part of the legislation that could be troubling for employers is around the right to refuse work, said French. As it stands, the legislation isn’t very clear on who can refuse work and when, except for the standard work refusal exemptions allowed for police, firefighters and correctional services workers, among others.

But there are still many other workers in risky occupations who don’t fall under that exemption, said French. For example, would a bus driver whose route goes through a dangerous Toronto neighbourhood be able to refuse work?

“There will have to be caveats, some way to be able to accommodate some individuals where a certain amount of risk is something they need to understand is part of the job,” he said.

But the legislation has only gone through a first reading in the provincial legislature and there will probably be some changes as it makes its way into law, said French.

Clear steps to develop policies

The legislation lays out very clearly the steps employers would need to take in developing workplace violence policies and procedures, said Edwards. It states employers would have to conduct violence risk assessments, implement policies to address those risks and perform periodic assessments of the policies and risks. There would also have to be a mechanism in place for workers to call for immediate assistance if they are at risk of violence.

“They’re actually directing employers to look at some fairly logical and commonly recommended elements of a workplace violence prevention program right in the legislation,” said Edwards.

While employers will have six months to get policies and procedures in place after the bill passes, which it is expected to do, employers should start looking to other jurisdictions that already include violence under OHS to prepare, said French.

“My advice to employers now is to seriously start to take a look at your policies regarding protection of employees from violence and learn from other jurisdictions and comparable organizations in your industrial sector,” he said.

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