Employers may not think of domestic violence as a workplace issue. However, legislation across Canada creates obligations for employers in the workplace relating to domestic violence.

Generally, employers are aware that in BC WorkSafe occupational health and safety legislation requires businesses to provide a safe a workspace as possible for their employees. In 2023 WorkSafe BC issued a media release which can be found here, which reported a 25% increase in wage loss claims related directly to violence in the workplace.

The report separates the claims by industry, but it does not provide information about the nature or source of the violence. It is likely that the numbers reported do not capture workplace incidents where:

  1. there may have been violence or threats of violence but where there is no compensable physical and/or mental injury; or
  2. the employee is deterred from reporting threats or violence due to privacy and/or safety concerns.

WorkSafe BC has many resources available on its website to assist businesses with preventing and mitigating threats and occurrences of violence in the workplace. Some of those resources specifically address the issue of workplace violence that stems from domestic violence. A general workplace violence prevention plan may address some of the concerns regarding domestic violence. However, domestic violence issues raise some unique practical concerns around privacy and safety as well as specific legislative requirements of which employers should be aware and which should be addressed in any general workplace violence policy.

Issues to Consider

1. Education

The foundational step to establishing appropriate workplace protocols for domestic violence is education. Educate yourself, the leadership within your organization, the senior staff, and all workers connected to the workplace with respect to domestic violence issues. As a starting point, reviewing the WorkSafe BC resources on this subject requires minimal time, will answer many questions as to why this topic is relevant to the workplace and may equip those responsible with addressing this issue in their workplace with the tools to do so.

There are many definitions of domestic violence published by expert educational authorities but in the BC landscape of workplace law there are two definitions which employers need to be particularly familiar with: the WorkSafe BC definition and the definition in Part 6 of the Employment Standards Act of British Columbia (the "ESA").

WorkSafe BC's site describes the term "domestic violence" as a "range of behaviors or actions taken by a person to control or dominate another person. It is characterized by abusive, coercive, forceful, or threatening acts or words used by one member of a family, household, or intimate relationship against another".

When one considers the definition above, it is clear how an employee experiencing domestic violence could be affected in the workplace and/or how that abuse could spill into the workplace. WorkSafe's website also notes that domestic violence can "affect employee productivity, lead to absenteeism, affect workplace morale, and put a workplace at risk."

Section 52.5 Leave respecting domestic or sexual violence of the ESA contains a lengthy definition of "domestic violence" and, states in part (the author has italicized certain words to indicate they are defined terms in the ESA):

"Domestic or sexual violence" includes, with or without an intent to harm an intimate partner or family member,

  1. a) physical abuse by an intimate partner or by a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,
  2. b) sexual abuse by any person,
  3. c) attempts to commit (i) physical abuse by an intimate partner or by a family member, or (ii) sexual abuse by any person, and (d) psychological or emotional abuse by an intimate partner or by a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii) unreasonable restrictions on, or prevention of, financial or personal autonomy,

(iii) stalking or following, and (iv) intentional damage to property...

It is important to note that both definitions include conduct which is not physical. As a result, implementing strategies and policies to help mitigate or prevent the effects of and risks posed by domestic violence in the workplace may involve navigating highly sensitive competing legal interests, including the interests of privacy and safety.

2. Privacy

When developing any workplace policies, the protection of employee privacy must always be top of mind for employers. The Personal Information Protection Act (PIPA) governs the collection, use and storage of employees' private information for business operating in the private sector. The Freedom of Information and Protection of Privacy Act (FOIPPA) has similar provisions which govern public sector employers. In PIPA there are very few exceptions to the disclosure of private employee information without consent. One of those exceptions could apply to a situation where violence in the workplace is a concern.

Specifically, Section 18 of PIPA provides an exception for the disclosure of private information without consent where:

  • there are reasonable grounds to believe that compelling circumstances exist that affect the health or safety of that individual (s. 18(1)(k));
  • where disclosure is clearly in the interest of the individual and consent cannot be obtained in a timely way (s. 18(1)(a)); and
  • if the disclosure is for the purpose of contacting the next of kin or a friend of an injured, ill, or deceased individual (s. 18(1)(l)).

While the above exceptions can assist employers with drafting policies for situations which require urgent action to protect health and safety, employee privacy must also be considered where exigent circumstances are not present. For instance, if an employee has reported domestic violence but has also reported having a safety plan in place which the employer has determined does not place any of its workforce at risk.

3. Safety

An employer will always be concerned with taking care not to exacerbate an unsafe situation. It should consider that the employee may be afraid to discuss or share details of abusive conduct for fear of retaliation-not just from the aggressor but other members of their familial or personal networks. Employers should be cognizant of the fact that an employee facing domestic violence may not have control of their personal phone or email and information about leaves of absence or other support passed through those channels could be viewed by the aggressor.

For many employees work may be the safest place to be. A place which provides respite from a challenging and changing situation. An employer may suspect something is not right but may have no real evidence to conclude that the source of the problem is domestic violence. In such a case the employer can only continue to educate its workforce with respect to resources generally and specifically (statutory leaves of absence or benefits).

Consistent with their duty to provide a safe workspace, an employer who has a reasonably founded concern that a domestic violence situation may arrive at the workplace has a duty to take steps. This could include making enquiries with the affected employee about whether their aggressor has any restraining orders in place (which include their workplace) and generally the likelihood of the aggressor attending at the workplace.

An employee's answers to inquiries like the ones mentioned above can provide valuable information to an employer developing a workplace safety plan and can inform the development of clear emergency communication protocols and any other safety measures an employer may be able to afford implementing such as relocating the employee to another location, installing additional cameras or simply ensuring that the employee has a safe person to contact and the parameters of the scenarios in which that person can be contacted.

Safety and privacy are a delicate balance in any analysis. If an employer has concerns about this process they should contact a lawyer for support.

4. Protected Leave

Part 6 of the ESA lists several leaves which could support an employee who is experiencing domestic violence. Employers should make themselves aware of all the leave options and their specific criteria and provide that information to their employees.

The s. 52.5 "Leave respecting domestic or sexual violence".

provides for: a) 5 days of paid leave and 5 days of unpaid leave (which do not have to be taken all at once and b) up to 15 weeks of unpaid leave (which does not have to be taken all at once if the employer agrees). Additionally, no notice is required for domestic violence leave and it can be taken for many reasons including a need to obtain legal advice, relocate housing, visit social services or obtain medical attention.

There are many important considerations when creating domestic violence policies for workplaces. Contact the author for advice regarding creating policies appropriate for your workplace or for advice regarding specific employment situations.

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.