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Clarification on Ontario Bill 168

On January 27, 2010, I attended the HRPA annual conference. I was most interested on the session titled, Violence in the Workplace: An Update on Bill 168 from the Ministry of Labour. I needed some clarification on possible exemptions to the new violence and harassment prevention law and the application of certain measures in the bill.

John Vander Doelen, Director of the Health and Safety Policy and Programs Development Branch, at the Ministry of Labour, was the speaker. He offered these clarifications on the application of Ontario Bill 168:

Exemptions
There has been much confusion about the possibility that employers with less than five employees will be exempt from the provisions found in Bill 168. The director confirmed that all Ontario workplaces to which the Occupational Health and Safety Act currently applies must take every precaution reasonable in the circumstances to protect the health and safety of their workers in the workplace. This includes protecting employees against the risk of workplace violence and harassment.

This means that no matter the size of the organization, employers must assess the risk of violence and harassment; take reasonable measures to prevent violent and harassing incidents and protect employees; have measures to report, respond and investigate incidents of violence and harassment; and provide training and education to employees.

The only measure that does not apply to workplaces with five or fewer regular employees is the obligation to have the violence and harassment policies in writing and posted in a conspicuous place in the workplace. However, note that an inspector can order a workplace with less than five employees to have these policies if there is evidence of the risk of workplace violence and harassment, or after an incident occurs.

Definition of harassment under OHS and HRC
The definition of harassment in occupational health and safety law mirrors the definition found under human rights legislation, and includes bullying, teasing, gossiping, sexual harassment and so forth, but is not limited to the prohibited grounds of discrimination; thus the OHS law has broader application.

Can one policy address both violence and harassment?
According to the director, these topics should not be addressed in one policy. There should be separate policies addressing violence and harassment.

Indeed, the law refers to them as “policies” not one policy. More specifically, the clause is drafted as follows:

Policies, violence and harassment

32.0.1 (1) An employer shall,

(a) prepare a policy with respect to workplace violence;

(b) prepare a policy with respect to workplace harassment; and

(c) review the policies as often as is necessary, but at least annually.

Domestic violence
The Ministry of Labour does not require employers to perform a proactive risk assessment regarding domestic violence. The risk assessment is reactive in this case, meaning, if a worker or co-worker reports the possibility of domestic violence, or there are visible signs, then a risk assessment should be triggered to ensure that controls are in place to prevent the violence from entering the workplace.

Criminal record checks or background checks
The Ministry of Labour admits that this may be a grey area, but the ministry does not require proactive criminal record checks or enhanced background checks to identify an employee’s or applicant’s history of violence (as Vander Doelen said, digging into someone’s past).

Disclosure requirement
There is no obligation to disclose a history of harassing behaviours, only the risk of violent behaviours based on previous incidents of violence.

One guiding principle for disclosure is to decide if the evidence or facts brings you to the reasonable conclusion that you will or will not find violence in the workplace. Employers have to use a balanced approach in this obligation to ensure they are not making the disclosure so widespread in the workplace that it invades anyone’s privacy or becomes a discriminative action.

What employers need to know is the potential for violence, or when violence might occur, so that they can take precautionary measures. But employers are not allowed to ask for diagnoses, medical information or treatment. That is beyond the scope of the law.

This said, the Ministry of Labour is getting ready. They are currently in the process of:

  • Integrating the provisions of Bill 168 into the Occupational Health and Safety Act, refer to grayed out provisions
  • Training inspectors
  • Developing resources and tools such as brochures, fact sheets and compliance guidelines with checklists

In addition, the director emphasized that ministry inspectors are there to enforce compliance with the law. If an incident happens, you are obliged to call the ministry to report the incident, but they will not investigate harassment complaints or take action against a perpetrator of violence. The police will still have to be called. The ministry is there to ensure that employers are complying with the law and following the rules to prevent the risk of violence and harassment in their workplace.

I hope this clarifies things.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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6 thoughts on “Clarification on Ontario Bill 168
  • Yosie Saint-Cyr says:

    Thanks Susan… read Andrew’s blog post on Tuesday October 26 on this topic of five or less employees…

  • Susan Smith says:

    Great review. Thank you for the clarification. Only yesterday, I attended a Trade show and a company was selling a tool to employers on how to implement Bill 168. The company (I won’t mention) clearly stated that Bill 168 only applies to employers with 5 or more employees. I should point out however, the company that promotes the product has no human resources professionals! Interesting eh?

  • Great review Yosie! Thanks for being our eyes and ears and collecting and reporting this valuable information!

  • My experience with the Ministry of Labour informs me that inspectors will be looking to see that an employer is ENGAGED in the process of compliance. So, as Yosie has written, NOW is the time to get busy! While you are working to comply with the new law, remember the training component and takes steps to arrange to train your staff.

  • Yosie Saint-Cyr says:

    The bill became law on December 15, 2009. The transition period is now… this is the time to prepare everything; the risk assessment, policies and prevention, reporting, response, investigation processes and programs must be in place on or before June 15, 2010.

    The Director did indicate that after June 15, if they are inspecting a workplace and find there is non compliance with the violence and harassment prevention rules, they will provide some leeway; but it will be on a case by case basis and will depend on the circumstances.

    The MOL inspectors do not intend to provide more than two to four weeks time to the employer to do what is necessary to comply. But for sure starting in 2011, enforcement will be strict.

  • Arlene Sweezey says:

    Hi Yosie,

    A very good eclarification of this new bill 168. Thank you!

    Do you know when we legally will be required to have violence and harassment policies and programs in place once the bill becomes law? Is there a grace period?

    Arlene