On June 15, 2010, Bill 168 will become law. Employers will be required to devise workplace violence and harassment policies, develop programs to implement such policies, and engage in assessments to measure workplace violence risks. In addition, work refusal rights and the duties of employers and supervisors under the OHSA have both been clarified to specifically apply to workplace violence.
How are "Workplace Violence" and "Workplace Harassment" Defined?
"Workplace violence" is defined under Bill 168 as: (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker; (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; or (c) 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. Notably, the definition of "workplace violence" is not limited to acts, attempts or threats made by a worker against a worker (though the conduct must occur in the "workplace").
"Workplace harassment" is defined under Bill 168 as "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." Unlike "harassment" under the Ontario Human Rights Code,1 conduct does not have to be related to a prohibited ground of discrimination (e.g., sex, age, ethnicity, disability, religion, etc.) to be considered "workplace harassment." 2
Assessments and Reassessments
Bill 168 requires employers to assess the risk of workplace violence, but not of workplace harassment.
To assess workplace violence, employers must take into account the conditions of both its own workplace and that of similar workplaces.
Employers also have an obligation to report on the results of the assessment to: (a) the joint health and safety committee, if one exists; (b) the health and safety representative, in smaller workplaces; or (c) the workers directly if there is no such committee or representative. If the assessment is in writing, then a copy must be provided.
Employers must reassess the workplace for workplace violence risks to ensure the workplace violence policy and program protects workers. Risk assessments should be well-documented and should be conducted by competent individuals who have broad experience and understanding of the workplace. Bill 168 requires that the reassessments occur "as often as is necessary." It is suggested that such reassessments occur after an incident of workplace violence or annually (whichever occurs first).
Workplace Violence and Harassment Policies and Programs
Bill 168 requires employers to prepare policies pertaining to workplace violence and workplace harassment. The policy must be in writing and posted in conspicuous places in the workplace (unless there are less than five employees in the workplace). The policies must be reviewed annually.
Bill 168 also requires employers to develop, and maintain, a program to implement these policies.
The workplace violence program must include measures and procedures to: (a) control the risks identified in the assessment; (b) call for immediate assistance when workplace violence occurs, or is likely or threatened; (c) report incidents or threats of workplace violence to the employer or supervisor; and (d) establish how the employer investigates and manages incidents, complaints or threats of workplace violence.
The workplace harassment program must include procedures for reporting, investigating and dealing with incidents of workplace harassment.
Employers are also required to provide employee training on the contents of the policy and program pertaining to workplace violence. The training should be conducted by a competent individual or team, and be relevant and individualized to the workers being trained.
Disclosure of Persons with a Violent History
Under Bill 168, employers and supervisors have an obligation to provide information, including personal information, to a worker about a person with "a history of violent behaviour" — if the worker could be expected to encounter that person in the course of his/her work and there is a risk of workplace violence likely to expose the worker to physical injury.
Bill 168 contains no guidance on who would be a person with a "history of violent behaviour" or what types of information should be disclosed. The person must have a history of "violent" behaviour (and not necessarily "harassing" behaviour) in order for the disclosure obligation to be triggered.
Also, the "violent" behaviour does not have to be behaviour for which the individual was criminally charged.
Bill 168 specifically addresses the issue of domestic violence in the workplace by requiring employers to "take every precaution reasonable in the circumstances" to protect workers from domestic violence that would likely cause physical injury to a worker in the workplace. This obligation arises only if the employer is either aware, or ought reasonably to be aware, of the situation. What constitutes "domestic violence" is not defined.
Bill 168 clarifies that a worker may refuse to work where he/she has reason to believe that he/she is in danger of being a victim of workplace violence. Such refusal would trigger the normal work refusal process, i.e., the employer's investigation of the refusal, followed up by a Ministry of Labour inspector, if necessary.
The OHSA will continue to prohibit workers in certain public and broader public sector workplaces from refusing work where the unsafe condition (e.g., workplace violence) is "inherent in the work" or is a "normal condition of employment."
There is no corresponding right to refuse work where "harassment" is believed likely to endanger the health and safety of a worker.
Tips for Employers
With June 15, 2010 approaching, you should organize your affairs and review your existing policies and procedures. You need to be diligent and develop and implement a plan to ensure compliance.
For example, you should:
- Create written workplace violence and workplace harassment policies that:
- are brief and simple, and convey that all employees are responsible for maintaining a safe workplace;
- provide clear definitions and/or examples of prohibited conduct, and cover incidents involving co-workers as well as incidents involving outside individuals;
- send a strong message that workplace violence and harassment is not tolerated; and
- provide a reporting and complaint procedure, as well as the steps to be taken to deal with or investigate any complaint.
- Train employees on such policies.
- Undertake risk assessments to determine the possibility or prevalence of workplace violence or workplace harassment and appropriately document the process. It may be appropriate for the assessment process to include: (a) individual interviews with a sample of workers; (b) a review of the physical workplace; (c) a comparison of similar workplaces; (d) a review of any previous incidents; and (e) the likelihood of interactions with the public that could lead to danger or confrontation.
- Disclose incidents of workplace violence and workplace harassment with the joint health and safety committee and any risk assessments undertaken.
- Provide an employee reporting mechanism that allow employees to report instances or risks of workplace violence and workplace harassment (e.g., in the policy).
- Discipline employees for not following workplace violence and harassment policies or for committing workplace violence or workplace harassment.
- Offer a confidential employee assistance program to allow employees subject to workplace violence or workplace harassment, or those with personal problems, to seek help.
- Ensure proper security measures are in place at the workplace to protect workers from members of the public or customers.
- Keep detailed records of any workplace violence or harassment, investigation or work refusal.
1 R.S.O. 1990, Ch. H.19
2 The concepts of "workplace violence" and "workplace harassment" have been broadly interpreted in other jurisdictions as well as under arbitral case law in Ontario. However, such case law has found that reasonable performance management and normal supervision and direction of employees will not be "harassment." It remains to be seen if this approach will be followed under the case law interpreting Bill 168.
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