The Ontario Legislature recently passed Bill 168, causing significant amendments to the Occupational Health and Safety Act in regards to violence and harassment in the workplace. The bill received royal assent on December 15, 2009 and came into full force and effect in Ontario of June 15, 2010.
The highlights of the amendments include:
- Workplace violence and workplace harassment have now been defined and included in the Act. Workplace violence is "a threat, an attempt or an exercise of physical force" and workplace harassment is "vexatious comments or conduct that is known or ought reasonably to be known to be unwelcome". This definition of harassment goes above and beyond what is included in the Ontario Human Rights Code, which requires harassment to be linked to an enumerated ground under the Code (i.e. race, disability, gender, age, etc.).
- Employers are now required to prepare policies with respect to workplace violence and workplace harassment and to review those policies at least annually.
- Employers are now required to assess the risks of workplace violence and to report the results of that assessment to the joint health and safety committee or to a health and safety representative (where there is no committee or representative, the results must be reported to the workers). The risks must be reassessed as often as is necessary to protect workers from workplace violence.
- Employers are now required to develop a program to implement the workplace violence policy. The program must include measures to control risks of workplace violence identified in the risk assessment, to summon immediate assistance when workplace violence occurs and for workers to report incidents of workplace violence. The program must also set out how the employer will deal with incidents and complaints of workplace violence.
- Employers are now required to develop a program to implement the workplace harassment policy, which program must include measures for workers to report incidents of workplace harassment and set out how the employer will deal with incidents and complaints of workplace harassment.
- If an employer is aware or ought to be aware that domestic violence that is likely to expose a worker to physical injury may occur in the workplace, the employer must take every reasonable precaution to protect the worker.
- Employers must now provide a worker with information and instruction on the contents of the workplace violence and workplace harassment policies and programs.
- A worker may now refuse to work in situations where workplace violence is likely to endanger the worker.
- The employer and the supervisor have a duty, in certain circumstances, to provide a worker with information (including personal information) about the risk of workplace violence from a person with a history of violent behaviour. The employer and the supervisor shall not disclose more personal information than is reasonably necessary.
If your organization has not already done so, it must take steps to comply with the amendments prior to June 15, 2010. Those steps must include:
1. Creating policies with respect to workplace violence and workplace harassment. If your organization has a human rights harassment and discrimination policy, that should still be kept in place, however the current amendments to the Occupational Health and Safety Act are significantly different than those contained in the Human Rights Code and as such, separate policies must be instituted or current policies need to be dramatically changed to incorporate the amendments to the Occupational Health and Safety Act. Amendments to the Occupational Health and Safety Act - 2 -
2. An assessment needs to be conducted in the workplace to assess the risks of workplace violence and a reporting needs to be done of the results of that assessment and communicated to the appropriate individual(s). The assessment can be done by somebody from your organization or somebody retained from outside of your organization with particular expertise in the area.
3. Programs for both workplace violence and workplace harassment need to be created and implemented.
These programs must include:
- a plan to educate new and existing employees about the employer's policies with respect to workplace violence and workplace harassment;
- specific steps and procedures the employer will take to control the risks identified in the assessment;
- specific steps and procedures employees should follow to call for help as soon as violence occurs, is likely to occur, or is threatened;
- the process employees should follow to report any incidents of violence or threats of violence to the employer;
- an explanation of how reports of violence or threats of violence will be investigated and acted upon.
4. You need to provide your workers with information and instruction on the contents of your workplace violence and harassment policies and programs.
5. Understand the changes being made to the Occupational Health and Safety Act. Visit http://www.elaws.gov.on.ca/html/statutes/english/elaws_statutes_90o01_e.htm.
What are some additional questions that employers may have?
What happens if my organization does not comply?
Inspectors from the Ministry of Labour can investigate your workplace and issue orders requiring compliance. Further, the Ministry of Labour can prosecute your organization or individuals within your organization if steps have not been or are not being taken to comply with the legislation. Monetary fines are an eventual result.
Must our policies be in writing?
If you have more than five employees, your policies must be in writing and posted in a conspicuous place in the workplace. If you have five or fewer employees, the policy does not have to be in writing or posted, unless an inspector orders otherwise. However, it is our suggestion that the policies always be in writing and posted in order to clearly share the information with your staff and avoid any confusion.
Must the assessment be in writing?
No, although it will be the easier to prove to the Ministry of Labour that it was properly done and considered all relevant factors, if you can present it in written form.
Hasn't there always been a right for a worker to refuse to work in an unsafe work condition?
Mostly, yes, however this was previously limited to where a worker has reason to believe that:
- any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;
- the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; or
- any equipment, machine, device or a thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of the Occupational Health and Safety Act or its regulations and such contravention is likely to endanger himself, herself or another worker.
Added to this, is where a worker has reason to believe that "workplace violence is likely to endanger himself or herself".
Can a worker refuse to work where workplace harassment is present? No. The amendments only include where workplace violence is likely to endanger the employee.
We already have a system in place to investigate human rights harassment or discrimination claims. Can we use that same investigation procedure in our workplace violence and harassment program?
Yes, as long as your procedure for investigating human rights related discrimination and harassment is proper and is sufficient to address the requirements of the Occupational Health and Safety Act.
Are only employees covered or independent contractors also caught?
It is likely that independent contractors and workers of subcontractors on construction sites will also be covered in the term "workers" as it applies to your organization's duties. The term "workers" has a much broader definition than does "employees" and likely covers your own employees, your independent contractors and employees of your subcontractors.
Does workplace violence and workplace harassment cover only acts or omissions that are done during working hours at the organization's location?
No, the broad definition will likely be used, covering company social functions outside of regular business hours, work related activities occurring at locations other than the workplace, etc.
If you require assistance on creating policies, conducting assessments, creating and implementing programs and informing and training your employees on workplace violence and workplace harassment in order to comply with the changes to the Occupational Health and Safety Act, we would be pleased to assist you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.