On April 20th, 2009, the Ontario Government introduced Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009. The Bill was carried after its first reading. If passed, it will place new and onerous obligations on employers in Ontario.
The new workplace violence and harassment legislation will apply to all Ontario employers who are provincially-regulated.
The Bill defines workplace violence somewhat narrowly as “the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker” or “an attempt to exercise physical force against a worker in a workplace”. The amendments apply only to physical violence, and not to psychological or emotional harm caused in the workplace.
Workplace harassment, on the other hand, is defined much more broadly 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”. Employers should note that this definition is not limited to harassment related to the grounds of discrimination that are outlined in Ontario’s Human Rights Code. Rather, harassment that is completely unrelated to any of those grounds will be subject to the requirements set out below. Employers’ existing anti-harassment policies may therefore need to be updated in order to ensure that they address this broader definition of harassment.
The Right to Refuse Work
Bill 168 gives employees the right to refuse work when they have reason to believe that they will be subject to workplace violence. However, the legislation does allow for the enactment of regulations to create exceptions to this right in specific situations where violence is inherent in the employee’s work, or is a normal condition of his or her employment.
Obligations on Employers
Should Bill 168 become law, employers will be required to:
- Create workplace violence and harassment policies;
- Review the policies annually; and
- In workplaces with more than five (5) employees, post the policies.
Employers must then develop programs in order to ensure that their workplace violence and harassment policies are implemented. Specifically, the programs must include the following:
- Measures and procedures to control the risks of workplace violence;
- Measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur, or a threat of violence is made;
- Measures and procedures for employees to report incidents of workplace violence and harassment; and
- A method by which the employer will investigate and deal with incidents of workplace violence and harassment.
- Employees must be given information and instruction regarding the above policies and programs.
Employers will also be required to assess the risk of workplace violence in their workplaces and advise the joint health and safety committee (or the health and safety representative or the employees themselves, as applicable) of the results of the assessment. The employer must then reassess the situation as often as is necessary in order to protect employees’ safety.
The above requirements are similar to those set out in Part XX of the Canada Labour Code, which came into effect on May 8th, 2008. The requirements related to creating and implementing workplace violence policies are also similar to those found in other provinces’ occupational health and safety legislation. However, Bill 168 places new, unique obligations on employers, including the following:
(a) Domestic Violence
The proposed amendments to Ontario’s Occupational Health and Safety Act would require employers who are aware, or ought reasonably to be aware, that domestic violence that would likely expose an employee to physical injury may occur in the workplace to take every reasonable precaution for the protection of the affected employees.
(b) Persons with a History of Violent Behaviour
Bill 168 also places an obligation on employers and supervisors to warn employees about the risk of workplace violence from a person with a history of violent behaviour. If an employee can be expected to encounter a person with a history of violent behaviour in the course of his or her work, and the risk of violence is likely to expose the employee to physical injury, the employer is obliged to disclose personal information about the violent person to the employee. However, no more information than is reasonably necessary to protect the worker is to be divulged.
This obligation will likely be a difficult one for employers to meet. The legislation does not define a “person with a history of violent behaviour”. Accordingly, it will likely be challenging for employers to correctly identify, and issue warnings to employees in respect of such persons.
What Does this Mean for Employers?
Since it is a Government Bill, Bill 168 is likely to become law. If it does, the changes it entails will come into affect six months after the Bill receives Royal Assent.
While employers will be required to establish new policies consistent with the requirements of the Regulation, the obligation is far more onerous than this – simply having a policy on workplace violence and harassment will not be sufficient.
The Regulations require procedures to identify potentially dangerous situations before they arise, and the implementation of response procedures. All employees must be trained in their roles and responsibilities under these policies, and the policies must be continuously monitored to ensure effectiveness.
Additionally, workplace violence and harassment policies and issues will overlap with human rights and labour relations in the workplace. Federally regulated employers who are covered by the existing workplace violence and harassment regulations under the Canada Labour Code are discovering that employees and their unions are using the Regulations provisions as a new complaint mechanism for responding to performance management and acts of discipline. Incidents of Right of Refusal are occurring in response to supervisor/employee workplace interactions. As in the federal sphere, these Regulations will create new challenges for Labour Relations and Human Resources practitioners.