Practice Tips – Complying With Bill 168

As a result of the passage of Bill 168, the new Occupational Health and Safety Act ("OHSA") scheme aimed at preventing workplace violence and harassment will come into force on June 15, 2010. For most employers, complying with the new OHSA provisions will require a substantial commitment of time and focus and employers would be wise to start laying the groundwork well in advance of June 15th. In summary, employers will be required to:

1. Carry out a risk assessment to identify potential sources of workplace violence and harassment;
2. Develop policies to address workplace violence and harassment; and
3. Ensure an appropriate response to an incident or threat of workplace violence or to an incident of harassment.

1. Carry Out A Risk Assessment

Care must be taken in carrying out the risk assessment, as the results will dictate the content of the policies. For example, the results of some risk assessments may identify the need for a policy that staff should not work alone or that they be required to carry panic buttons in certain situations. We would recommend employers consider the following when assessing their level of risk:

• Consult with employees by providing them with information about the OHSA amendments, asking them to reflect on possible sources of violence or harassment in the workplace, and collecting the employees' responses, whether by e-mail, questionnaire, or minutes taken at department meetings (Bill 168 does not require that employers consult with employees directly but we strongly suggest it. Employees likely have better information than employers about the specific threats in their workplace. As well, if employees are consulted and a risk is not identified, it would be harder for an investigator to conclude that the risk was foreseeable).
• Research what other similar employers have done to prevent workplace violence and harassment. As well, review the risks identified by professional associations in your industry (e.g. associations of nurses or engineers) and by associations concerned with the prevention of workplace violence and harassment.
• Review all previous complaints, incidents, or threats of workplace violence and harassment in your workplace.
• Consider the factors that increase the risk of workplace violence and harassment: handling money or other valuables; working directly with the public; interacting with mentally ill or impaired persons; interacting with persons in the criminal justice system; working night shifts; and working in remote or secluded areas.
• The results of the risk assessment must be shared with the joint health and safety committee or the health and safety representative. If none of these are required by law, the employer must share the results with the employees.

2. Prepare And Implement Policies

The OHSA technically requires that employers have policies addressing workplace violence and harassment and, in addition, "programs" to implement the policies. From a practical point of view, employers are likely to simply include its policy objectives and the means of achieving those objectives in one policy document. Employers should ensure their policies cover the following areas:

• Provide that the employer does not tolerate workplace violence or harassment in any form and that incidents will be addressed appropriately, including the possibility of terminating a perpetrator's employment.
• Identify a specific person or office as being responsible for ensuring compliance with the policy.
• Ensure all risk areas identified in the mandatory risk assessment are covered in the policy. Outline concrete procedures that employees must follow to avoid or minimize the identified risk.
• Provide for reassessments of risk at least annually. It would be prudent to also provide for a reassessment or partial reassessment after each incident or reported threat.
• Provide for a system for reporting incidents/threats of workplace violence and harassment. Require that incident reports be compiled in a central location and used when reassessing the risk of workplace violence and harassment.
• Outline a procedure by which employees can seek assistance in the face of workplace violence or harassment. For example, advise employees to inform their manager, call security, call 911 or to press a panic button, depending on the gravity of the situation.
• If the premises have security, require that security personnel must always be available (e.g., ensure they carry a cellular telephone if away from their station) and ensure they have access to every area of the premises.
• Create a detailed investigation scheme (discussed in more detail below).
• Provide a mechanism for notifying staff if they are likely to encounter a person with a history of violence on the job. Ensure the policy provides that only the information required to sufficiently alert employees to the threat is disclosed.
• Provide a mechanism for protecting employees from domestic violence in the workplace. It would be helpful to provide some examples of how this might materialize, e.g. two family members working together or a family member that visits or is about to visit an employee at the workplace.
• Provide all employees with a copy of the policy and implement training sessions to review it and to answer any of the employees' questions. Employees will likely have questions about what constitutes harassment, summoning help, reporting incidents, domestic violence in the workplace and alerting staff to those with histories of violent behaviour.

3. Respond Appropriately

The first step should be ensuring the victim(s) or intended victim(s) of workplace violence or harassment is (are) safe.

• Determine if the OHSA requires that the incident be reported to the Ministry of Labour.
• Conduct a complete investigation as soon as possible after the incident, while witnesses can still be identified and their memories are fresh.
• When questioning witnesses (including the perpetrator and victim), take detailed notes. If the perpetrator is a union member, remember to invite a union representative to the interview.
• Identify and secure all evidence (e.g. e-mails, telephone logs, video recordings and weapons).
• Prepare a written report outlining the facts, the basis for resolving inconsistencies in material facts, the action taken and why.
• Maintain all notes, reports and evidence in a secure location.
• Ensure the final report is submitted to the person/office responsible for Bill 168 compliance so that the incident can be reviewed during the next risk assessment.

Developing a game plan is critical. Please feel free to contact BLG's Labour & Employment Group to assist in implementing your Bill 168 policies and programs.

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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.