On April 20, 2009, the Ontario Minister of Labour introduced Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009 (the "Bill"). The Bill follows the Ministry's consultation paper requesting feedback on potential workplace violence legislation from the fall of 2008. If passed, it would amend parts of the Occupational Health and Safety Act ("OHSA"). These amendments impose new duties on employers to address violence and harassment in the workplace in the form of policies, programs, risk assessments, and the provision of information to workers where a person has a history of violence. The amendments apply generally to all employers and there are provisions that are of particular concern should the Bill become law.
Definitions Of Workplace Violence And Workplace Harassment
The Bill defines "workplace harassment" and "workplace violence" in the following manner:
"Workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.
"Workplace violence" means:
- the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker,
- an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.
The definition of harassment includes both "comment" and "conduct". This creates a broad standard that includes unwelcome physical or psychological harassment. The definition of workplace violence, however, is limited to actual or attempted physical harm.
Policies And Programs
The Bill requires that employers develop workplace violence and harassment policies, which are to be reviewed annually. In addition, employers have to develop programs to implement these policies. These programs must include measures and procedures to:
- control identified risks;
- summon immediate assistance when violence occurs or is likely to occur, or when a threat is made;
- report incidents or threats of workplace violence to the employer or supervisor; and
- investigate and deal with incidents, complaints or threats of workplace violence.
Assessment Of Workplace Violence
The Bill requires employers to assess the risk of workplace violence that may arise from 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. A copy of the risk assessment and its results must then be provided to the joint health and safety committee or the health and safety representative. Where there is no committee or representative, employees must be advised of the results of the assessment.
The Bill does not specify how an assessment should be done, or exactly what factors should be taken into account when it is conducted. It also requires that employers reassess the risk of workplace violence "as often as necessary" to protect workers but without specific guidance as to how often reassessment should occur.
Addressing Domestic Violence
Where an employer becomes aware, or ought reasonably be aware, that domestic violence likely to expose a worker to physical injury may occur in the workplace, the Bill requires that the employer take every reasonable precaution in the circumstances for the protection of the worker. This provision specifies that employers must only become involved when domestic violence may occur "in the workplace", which, in practice, may be a very difficult line to draw. In addition, the requirement of "ought reasonably to be aware" of domestic violence will likely be difficult to determine. Finally, there may also be concerns regarding a worker's privacy and when an employer ought to become involved in a worker's "private" life.
Disclosing Persons With A History Of Violence
The Bill requires employers to provide information to workers, including personal information, of a person with a history of violent behaviour. An employer must provide this information if the worker can be expected to encounter that person in the course of his or her work, and the risk of workplace violence is likely to expose the worker to physical injury.
While the Bill provides that employers must not disclose "more information than is reasonably necessary to protect the worker from physical injury", there are no specific provisions regarding the type and amount of personal information that must be provided.
If the source of the risk is a co-worker, there will also be concerns about the worker's privacy and the appropriate limits for disclosure. The employer's obligations under the Ontario Human Rights Code ("OHRC") will have to be considered as it prohibits discrimination on the basis of "record of offences". For example, if an employer is aware of and chooses to disclose an employee's criminal conviction relating to physical violence for which a pardon has been granted and not revoked, there is a risk that the employer could be faced with an OHRC application on the basis of the protected ground of "record of offences". On the other hand, if they do not disclose such information and an employee is injured, the employer may be in violation of the OHSA.
The Bill permits a worker to refuse to work or perform particular work where he or she has reason to believe that workplace violence is likely to occur. However, the OHSA currently prohibits certain workers, for example, hospital employees, from refusing work when unsafe conditions are inherent in the work or are a normal condition of employment. The Bill allows for a regulation to define when an unsafe condition is inherent in the work or is a normal condition of employment.
The Bill clearly sets out some important new obligations on employers. The second reading of the Bill has not yet been announced. There may be public hearings as part of the legislative process, which would provide an opportunity for public input. Because of the above noted concerns, we will be monitoring the Bill as it moves through the next stages of the legislative process.
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.