Canada: Workplace Violence And Harassment: Bill 29 And Regulatory Responses

Workplace violence is hardly a new phenomenon. Certain workers like police officers and firefighters face an inherent risk of workplace violence. Unfortunately, manufacturing and office jobs also experience conflict and incidents of harassment and violence.

Whether it's actual physical aggression or other forms of workplace violence like threats or harassment, some research suggests that such conduct is on the rise.

Such research, along with various high-profile incidents at Canadian workplaces and universities, and the passing of workplace violence regulations in other provinces, has prompted Ontario's legislators and regulators to take action. For federally regulated employers, a regulation to Part II of the Canada Labour Code has been proposed to address workplace violence.

Bill 29: A Proposed Workplace Violence Regulation

Although the Ontario Occupational Health and Safety Act (OHSA) imposes general duties on employers to ensure a safe workplace, some have argued that OHSA, as currently drafted, does not go far enough to specifically address workplace violence.

As a result, on December 13, 2007, a private member's bill was introduced in the Ontario legislature. Bill 29 seeks to amend OHSA to incorporate clear and specific (and onerous) duties for employers to protect workers from workplace violence. Notably, Bill 29 treats "harassment" as a form of workplace violence.

Application And Definitions

Bill 29 has defined harassment and violence very broadly as follows:

"Harassment" means engaging in a course of vexatious comment or conduct that constitutes a threat to the health or safety of a worker and that is known or ought reasonably to be known to be unwelcome and that may adversely affect the worker's psychological or physical well-being.

"Violence" means the threatened, attempted or actual exercise of any physical force by a person that endangers the physical health or safety of a worker, and includes any threatening statement or behaviour that gives a worker reasonable cause to believe that he or she is at risk of physical injury.

As is evident, the definitions of "harassment" and "violence" cover both physical aggression and "non-physical" or "psychological" forms of aggression.

Bill 29 is not just limited to acts of violence or harassment by co-workers. Instead, workers are protected against workplace violence or harassment from likely all conceivable workplace parties, including clients, patients and customers of the employer, and any other person on the employer's premises.

Bill 29 also defines "workplace related harassment or violence" as any harassment or violence that has the effect of interfering with the performance or safety of any worker in the workplace or that creates an intimidating, hostile or offensive work environment for any worker.

Conduct Outside The Workplace

The expansive nature of Bill 29 is revealed in its attempt to regulate conduct arising outside the workforce. Under the proposed wording, Bill 29 would apply "whether or not the harassment or violence occurs at the workplace." This wording suggests that employers would be held responsible for violence or harassment occurring both within and outside the workplace.

Employer Duties

As noted above, Bill 29 creates specific, clear and onerous obligations on employers to prevent, and respond to, workplace violence and harassment. For example, employers must:

  • ensure that every worker is protected from workplace related harassment or violence;

  • prepare (as part of a health and safety policy) guidelines and processes for identifying, eliminating and dealing with "workplace related harassment or violence"; and

  • develop, on a regular basis, compulsory harassment and violence prevention training for workers and managers.

If an incident of workplace violence or harassment occurs, employers under Bill 29 must:

  • ensure that the source of the harassment or violence is identified and that the harassment or violence is prevented or stopped and, where necessary, "remove" the source of the harassment or violence from the workplace;

  • contact the police where appropriate;

  • ensure that "adequate steps" are taken to "remedy the effects of the harassment or violence"; and

  • compensate workers for violence or harassment related absences not otherwise covered by workers' compensation.

The Ministry Of Labour's Response To Workplace Violence

Apart from Bill 29, the Ontario Ministry of Labour (MOL) has devised its own strategy and approach to workplace violence.

Under OHSA, health and safety inspectors have broad powers to enter a workplace and perform various activities (e.g., inspections, audits and orders) to enforce compliance with OHSA. These inspectors have now been instructed to make orders and issue directives to employers in certain industries either because no workplace violence prevention program is in place or because the program is lacking in some way.

Inspectors have been directed to make orders requiring employers to (i) identify and remove hazards that can lead to workplace violence, (ii) identify and implement ways to avert (or at least minimize) the risk of violence, and (iii) educate workers to recognize and avoid hazards that can lead to workplace violence.

For this purpose, the MOL has defined workplace violence as "the attempted or actual exercise of any intentional physical force that causes or may cause physical injury to a worker. It also includes any threats that give a worker reasonable grounds to believe he or she is at risk of physical injury."

What Should Employers Do?

In addition to the legal and regulatory risks, incidents of workplace violence take their toll on organizations in other ways. These may include lower worker morale, turnover, blemished company image and loss of clients.

Whether in response to Bill 29 (should it become law), the proposed federal regulation (for federally regulated companies) or the MOL's increased focus on workplace violence, employers should be diligent and develop a plan to address the risk of workplace violence in their organization.

Some best practices for employers to follow include:

  • review legislative and regulatory requirements to ensure compliance;

  • establish a comprehensive workplace violence policy;

  • undertake risk assessments or other measures to determine the possibility or prevalence of workplace violence or harassment;

  • provide a mechanism for employees to report instances of workplace violence and harassment or hazards that can lead to workplace violence and harassment;

  • treat physical and non-physical acts of aggression as workplace violence and harassment;

  • discipline employees for failing to follow a workplace violence policy or those employees who commit workplace violence or harassment;

  • offer a confidential Employee Assistance Program to allow employees subject to workplace violence or those with personal problems to seek help;

  • ensure that proper security measures are in place; and

  • keep detailed records of any workplace violence or harassment, investigation or work refusal.

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.

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