The Ontario Occupational Health and Safety Act (OHSA) has been amended, with the amendments to take effect June 15, 2010. Now, all provincially regulated employers in Ontario with at least five or more employees will be required to develop both harassment and violence policies and implement programs to support those policies at the workplace. While the nature of the workplace will dictate the extent of the work required between now and June 15, 2010, all employers will be required to spend time in the months leading up to that date, bringing themselves into compliance with this new legislation. The changes require employers in Ontario to create policies addressing workplace violence and harassment, develop procedures to address both workplace violence (including domestic violence) and harassment, undertake training, conduct a workplace violence risk assessment, recognize new worker rights to refuse work, and ensure new employer reporting requirements if a worker is disabled from performing work due to workplace violence. Given the broad definitions of employer and worker under the OHSA, employers must be mindful that the policies and programs may also be applicable to contractors while they and their workers provide services to the employer at the workplace.
How Has The OHSA Been Amended?
- Definitions of workplace violence and workplace harassment will be added to the OHSA.
- Employers will be required to implement both policies and programs to deal specifically with these hazards.
- Employers (and supervisors) must notify workers of a risk of workplace violence from a person (including customers, patients and co-workers) with a history of violent behaviour if workers can be expected to encounter that person in the course of work and the risk of workplace violence is likely to expose the worker to physical injury.
- Employers must take steps to protect workers from domestic violence, if domestic violence likely would expose a worker to physical injury at the workplace.
The New Definitions
Workplace Violence means:
- 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; or
- A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.
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 Prevention Requirements
Employers will need to prepare and post a violence policy, conduct a workplace risk assessment and then, based on the results of that assessment, implement and maintain a workplace violence program.
In conducting the risk assessment and then developing the policy and a program to address violence, employers must take into account the threats from all persons at the workplace, not only workers. The assessment needs to reflect the conditions at the individual workplace, and based on the assessment, a program can be developed. Introducing a cookie cutter policy alone is not going to be sufficient to comply with these new legislative requirements. Workers in white collar offices probably will not face the same hazards as workers in retail or health care establishments, and so, the policy and programs which are developed to support the policy and to address violence in those three types of businesses will (or should) look very different. Each should be specific to the hazards actually or potentially faced by workers at the workplace.
Every workplace violence program must include the following components, specific to the workplace:
- Measures and procedures to control the risk identified in the assessment as likely to expose a worker to physical injury;
- Measures and procedures to summon immediate assistance when workplace violence occurs or is likely to occur;
- Measures and procedures for workers to report violence; and
- How the employer will investigate and deal with incidents or complaints of workplace violence.
The workplace violence assessment must be provided to the Joint Health and Safety Committee (JHSC), or if the workplace has fewer than 20 employees (and no JHSC), to the health and safety representative.
There must be a reassessment of the risk of violence at a workplace "as often as necessary" to ensure that the policy and program continue to protect workers from workplace violence.
One new requirement of the OHSA that needs to be addressed in the workplace violence program compels employers and supervisors to provide information, including personal information, related to the risks of workplace violence from a person with a history of violent behaviour if the worker can be expected to encounter that person during the course of their work, and if there is a risk of violence likely to expose the worker to physical injury. Disclosure of personal information must be limited to that information which is reasonably necessary to protect the worker from physical injury. Compliance with this term may be complicated and will require individual assessment because there may be legislated privacy protections that apply. Although there is a section of the OHSA that states the OHSA takes priority in the event of any conflict between two statutes, provincial privacy statutes also contain a provision that asserts priority in certain circumstances. Bill 168 does not specifically override applicable privacy statutes.
The amendments do not affect the limited right of workers such as health care workers, workers in correctional institutions or police officers to refuse work because of the threat of violence.
Workplace Harassment Prevention Requirements
Employers will also need to implement and maintain a harassment policy and an underlying program. Under Bill 168, workplace harassment is not limited to the prohibited grounds of harassment identified in the (Ontario) Human Rights Code (for example, harassment on the basis of race or sex or nationality). This definition of harassment was crafted to include bullying but, based on the broad definition of harassment, will also include the same types of harassment which the Code seeks to eliminate.
The program employers must implement to address harassment under the OHSA must:
- Include measures and procedures for workers to report incidents of workplace harassment; and
- Set out the means by which the employer will investigate and deal with incidents and complaints of workplace harassment.
In introducing a harassment policy and program to comply with the OHSA, employers will need to consider the overlapping obligations under the Code. Typically, in the past, harassment policies created to comply with the Code would generally include an assurance that the investigation would remain confidential, to the extent possible. Now that harassment policies and programs will fall under the OHSA, employers will need to consider if harassment claims should be considered by (or even reported to) the JHSC. Policies created under the Code will apply only to employees of the employer. Policies created under the OHSA will apply to workers, a term that includes both employees of the employer and contractor workers.
Training And Information
An employer must provide a worker with information and instruction that is appropriate to the worker about the contents of the policies and programs – for both violence and harassment. This may mean, for the workplace violence policy and program, different training programs, as different types of workers will face different threats. Clearly, workers who deal with the public (including customers and patients), may require additional and more extensive training than those who are not dealing with external personnel.
New Work Refusal Requirements
The work refusal section of the OHSA will be amended to reflect the right to refuse work based on the conduct of other persons so that workers can refuse to work if "workplace violence is likely to endanger himself or herself". Currently the OHSA permits a worker to refuse work if he/ she believed there was a threat of harm caused by the physical condition of the workplace or any equipment or device a worker was operating.
The language changes to the work refusal investigation process contained in Bill 168 will affect all work refusals. Previously, a worker who had refused to work was required to remain in a safe place near his or her work station. After June 15, 2010, during the first stage of the refusal, the worker must remain "as near as reasonably possible to his or her work station and available to the employer or supervisor for the purpose of the investigation."
Reporting Workplace Violence
If a worker is disabled from performing their regular duties or requires medical attention as a result of workplace violence, pursuant to section 52 of the OHSA, notice must be given to the JHSC and trade union (if any) and if required by an inspector, sent to the Ministry of Labour.
Employer Response To Domestic Violence
There is a provision that requires employers to take every precaution reasonable in the circumstances for the protection of a worker if the employer becomes aware, or ought reasonably to be aware, that domestic violence would likely expose a worker to physical injury at the workplace. The legislation does not specify what steps might be reasonable precautions.
The OHSA will be amended to permit OHSA inspectors to issue orders compelling the employer to designate a workplace coordinator for workplace violence and harassment.
Time To Move Now
In October, the Countering Distracting Driving and Promoting Green Transportation Act, 2009 was enacted, prohibiting drivers from driving if using hand-held devices. Some employers implemented policies to reflect the new requirements, if employees were driving while on work business. With these two new legislative enactments, in addition to building the mandated programs to address workplace violence and harassment, it may be prudent for Ontario employers subject to these statutes to update their employee manuals to ensure that the manuals properly reflect current legislative requirements and cases which interpret the applicable legislation.
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.