Ontario’s new workplace violence and harassment legislation puts some heavy responsibilities on employers
Launching an assault on workplace violence
The clock is ticking for Ontario employers who face a new slate of health and safety responsibilities when new legislative rules on the prevention of workplace violence and harassment come into effect in the province in a couple of months. The new legislation demands employers to be more proactive in ensuring the safety of their employees and it means significant changes in policy and practices for many.
Some of the provisions are stirring up controversy and could catch some employers off-guard if they’re not prepared. Employment lawyers Susan Sorensen and Lisa Cabel of Borden Ladner Gervais outline the key aspects of Bill 168 that employers should be ready for when June 15 rolls around.
Recent legislative changes in Ontario will dramatically alter how an organization manages and responds to workplace violence and workplace harassment. Apart from existing requirements under human rights or health and safety legislation, employers are now required to have more than perfunctory procedures and policies in place to deal with workplace violence and harassment. These changes will affect the majority of businesses in Ontario from the ground up.
Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, received Royal Assent on Dec. 15, 2009. It amends the Occupational Health and Safety Act (OHSA) to require employers in Ontario to directly address issues related to violence and harassment at work. Ontario employers have until June 15, 2010, to prepare.
Background
In an open letter to the public on Sept. 17, 2008, the Ontario government announced its intention to review and revise the OHSA to include provisions related to workplace violence. The government explained the general duty in the OHSA to take every precaution reasonable to protect workers already included the duty to protect workers from workplace violence, but “issues” had been raised by individuals, groups and coroner’s inquests that suggested it was time to review, clarify and possibly enhance the legislation. In a consultation paper on the same date, the government referred to a 2004 Statistics Canada survey, Criminal Victimization in the Workplace, which found 17 per cent of all violent incidents reported in Canada occurred at the victim’s place of work.
In several high profile workplace murder cases over the past 15 years, including those involving Lori Dupont and the Hotel Dieu Grace Hospital in Windsor, Pierre Lebrun and OC Transpo in Ottawa, and Theresa Vince and Sears Canada in Chatham, Ont. Coroner’s juries made recommendations including the review or creation of legislation to address workplace violence and harassment. They also recommended employers have in place policies and prevention programs to deal with these issues as a matter of workplace health and safety. Alberta, British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Saskatchewan and the Federal jurisdiction already have specific provisions or legislation aimed at workplace violence and harassment. In the view of some, Bill 168 was a rather late response to a growing problem.
Definition of workplace violence and workplace harassment
Bill 168 specifically defines “workplace harassment” to include both “comment” and “conduct.” “Workplace violence” is defined as actual and attempted physical harm as well as statements or conduct that may be perceived as a threat. These broad definitions create a standard that includes unwelcome physical or psychological harassment as well as statements and conduct that may lead to physical violence. Accordingly, whereas an employer’s duties and responsibilities under the OHSA previously related more directly to threats to physical safety and the physical condition of the workplace, Bill 168 expands this to include the mental or psychological aspects of employee health and safety.
The expansive definitions of workplace violence and harassment were key among recommendations made by stakeholders in the consultation process prior to the bill’s first reading and in the committee hearings at the second reading stage. It was emphasized that violent workplace incidents often have their root in less significant workplace issues or problems — such as harassment or sexual harassment. One of the goals of the legislation is the creation of policies that will trigger investigation and reporting procedures to identify risks of violent conduct at an early stage.
Policies and programs
Bill 168 requires employers to develop and annually review separate workplace violence and harassment policies. In addition, employers have to develop programs to implement those policies. At a minimum, these programs must include measures and procedures to:
•Control identified risks
•Summon immediate assistance when workplace violence occurs or is likely to occur
•Report incidents of workplace violence to the employer or supervisor
•Investigate and deal with incidents or complaints of workplace violence.
If an employer has five or more employees, the policies must be posted in a prominent area in the workplace. And, significantly, employers must ensure all employees receive appropriate training.
Controversial requirements leave uncertainty for employers
Bill 168 requires employers to formally assess the risk of workplace violence in terms of the nature of the workplace, the type of work or the conditions of work. The assessment must take into account circumstances common to similar workplaces and circumstances specific to the employer’s workplace. Unfortunately, Bill 168 does not specify how an assessment should be done, whether or not it needs to be in writing — although Ministry of Labour inspectors can order the assessment to be done in writing — or exactly what factors should be taken into account.
Where an employer becomes aware, or ought to reasonably be aware, that domestic violence will likely expose a worker to physical injury in the workplace, the bill requires the employer to take every reasonable precaution in the circumstances to protect the worker. The term “domestic violence” is not defined and there is little guidance on what exactly an employer should do to address it, or when an employer “ought reasonably to be aware.”
This provision is arguably one of the most controversial aspects of Bill 168 and it is unique to Ontario. It appears to have its genesis in the jury recommendations from the Lori Dupont inquest. In that case, the coroner’s jury found many of Dupont’s co-workers were aware Marc Daniel — a doctor with whom she worked and had a relationship — was harassing her. However, no one was certain about how to address it in the workplace, or within the confines of existing policies. The coroner’s jury recommended changes be made to the OHSA to require employers to adopt policies that would trigger investigations and other emergency procedures in similar circumstances.
In another controversial provision, employers are required to provide information about a person with a history of violent behaviour to workers who are expected to encounter that person in the course of his work and there is a risk of workplace violence that could lead to physical injury.
While the bill stipulates employers must not disclose “more information than is reasonably necessary to protect the worker from physical injury,” there are no specifics on the type and amount of personal information that must be provided. There is also no direction as to how the employer is supposed to come by the information in the first place. These provisions also raise both human rights and privacy concerns, which will need to be further considered.
Refusing work
Bill 168 permits a worker to refuse to work where he has reason to believe workplace violence is likely to occur. However, the OHSA currently prohibits certain workers — such as hospital employees and emergency workers — from refusing work when unsafe conditions are inherent in the work or are a normal condition of employment. Bill 168 allows for a regulation to define when an unsafe condition is inherent in the work or is a normal condition of employment, although that regulation has not yet been published.
Bill 168 is a response to a growing and perplexing workplace problem. However, while it creates significant new obligations and responsibilities for employers to create policies, programs, and procedures in an attempt to address workplace violence and harassment, it provides little in the way of detail or direction. Nonetheless, employers have until June 2010 to become compliant. It is hoped that before then, the government will issue further detail with draft regulations or procedures that will assist Ontario’s businesses in meeting these important obligations.
Susan E. Sorensen is a partner practising labour and employment law with Borden Ladner Gervais LLP in Toronto. She can be reached at (416) 367-6017 or [email protected].
