February 23, 2010
In recent years concerns regarding workplace violence and harassment have escalated. A high proportion of violent incidents in Ontario occur in the workplace. In fact, a 2004 Statistics Canada survey found that 17 per cent of violence incidents occur at the workplace. Extreme incidents such as the 2005 workplace murder of nurse Lori Dupont by her ex-boyfriend Dr. Marc Daniel at the Hotel Dieu Grace Hospital in Windsor have raised public awareness of workplace violence. Not only in Ontario, but across Canada, the issue of workplace violence and harassment is attracting a high profile.
On December 9, 2009, the Ontario government approved Bill 168 - An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters - making Ontario the most recent Canadian province to amend its occupational health and safety legislation to address workplace violence and harassment. Bill 168 amendments both add new provisions to the current Occupational Health and Safety Act (OHSA) and extend existing OHSA duties to cover situations of workplace violence and harassment. Importantly, these amendments impose complex new obligations on employers to address issues of workplace violence and harassment. What are workplace harassment and workplace violence?
As a result of Bill 168, workplace harassment and workplace violence will now be specifically defined in the OHSA as follows:
• “workplace harassment” involves 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, (a) the exercise of physical force by a person against a worker in the 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 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.
WHAT ARE THE NEW REQUIREMENTS FOR EMPLOYERS?
With the amendments outlined in Bill 168, the OHSA will now require employers to take positive steps to prevent violence and harassment in the workplace. The following is an overview of the most significant new requirements.
1) Risk Assessment
Under the new legislation employers are required to conduct a risk assessment to determine the risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work. The results of the assessment will be reported to the Occupational Health and Safety Committee where one exists and otherwise to the workers. The employer is required to reassess the risks in the workplace as often as necessary to ensure that workers are protected from workplace violence.
2) Written Policies and Implementation Programs
The Bill 168 amendments to the OHSA require employers to develop policies and programs with respect to both “workplace violence” and “workplace harassment”. First, written policies must be developed and posted. Second, employers must design programs to implement those policies.
With respect to “workplace violence”, once the risks inherent to a particular workplace are identified, and where there are more than five (5) employees in the workplace, Bill 168 requires employers to develop and post a workplace violence policy and to develop a program to implement that policy. The program to implement the workplace violence policy must include the following elements:
• measures and procedures to control the risks identified in the required assessment;
• measures and procedures to summon immediate assistance where workplace violence occurs or is likely to occur;
• measures and procedures to allow workers to report incidents or threats of workplace violence to the employer; and
• the procedure the employer will follow to investigate and deal with incidents of workplace violence.
With respect to “workplace harassment”, workplaces with more than five (5) employees will be required to develop and post a policy regarding workplace harassment and to develop a program to implement that policy. The program to implement the workplace harassment policy must include measures and procedures for employees to report incidents of workplace harassment and must set out the way in which employers are to investigate incidents of workplace harassment.
3) Extension of Existing OH&S Obligations to Workplace Violence
The Bill 168 amendments extend the obligations contained in Section 25 of the OHSA, which requires employers to provide information and training, and Section 27 of the OHSA, which imposes on a supervisor the duty to advise workers of any potential hazard, to apply in situations of workplace violence.
Additionally, the right to refuse work has been extended. Currently under Section 43 of the OHSA an employee has the right to refuse unsafe work. The modifications contained in Bill 168 extend the right to refuse unsafe work to an employee who has reason to believe that workplace violence is likely to endanger him or her. It should be noted that the right to refuse work has not been extended to cover a situation of workplace harassment.
Under Section 52 of the OHSA the employer must now notify the Ministry of Labour if a worker is disabled from his or her regular duties, or requires medical attention, as a result of workplace violence.
4) Domestic Violence in the Workplace
Ontario is the first Canadian jurisdiction to specifically address domestic violence in the workplace. As a result of the amendments to the OHSA, if an employer is aware or ought to be aware that domestic violence likely to expose a worker to physical injury may occur in the workplace, the employer must take every reasonable precaution to protect the worker from such violence. This new requirement may be seen in part as a response to Lori Dupont’s murder by her co-worker and ex-boyfriend and the subsequent recommendations made following the coroner’s inquest into her death.
5) Disclose risks of violence to employees
The new amendments require employers to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour 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. However, employers are limited to disclosing only personal information that is reasonably necessary to protect the worker from injury.
WHEN WILL THESE NEW REQUIREMENTS TAKE EFFECT?
Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, received Royal Assent on December 15, 2009; however, the new provisions are not yet in force. The amendments will take effect on June 15, 2010.
WHAT SHOULD EMPLOYERS DO TO PREPARE FOR THE NEW REQUIREMENTS?
Employers must prepare for their new obligations that will come into force on June 15, 2010. Employers must develop and implement programs that will comply with the amendments to the OHSA. Many employers already have workplace discrimination and harassment policies that will need to be evaluated and adapted to meet the new requirements of the OHSA. Employers must now also address workplace violence. This process begins with an assessment of the risks inherent to the individual workplace. Employers must then develop a workplace violence program that includes policies, procedures and implementation.