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Ontario Bill 168 passes: workplace violence and harassment prevention addressed

blog-contestBill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 finally passed third reading on December 9, 2009 and is awaiting royal assent to become law. The bill will come into force six months after it receives royal assent (which is expected sometime mid-2010), and will make a number of significant changes to the Occupational Health and Safety Act (OHSA). Specifically, under the new provisions, employers (including supervisors and managers) are required to assess the risks of violence and harassment that may arise from the nature of their workplace, the type of work or the conditions of work. Once the risk assessment is completed, employers are required to prepare a written workplace violence and harassment prevention plan and policies. The policies will need to be posted in a conspicuous location in the workplace. In addition, employers will be required to review the policies “as often as is necessary”, but at least annually.

New provisions also require employers to take precautions to protect workers from domestic violence. This involves taking every precaution reasonable in the circumstances for the protection of the worker if an employer becomes aware, or ought reasonably to be aware, of domestic violence that would likely expose a worker to physical injury in the workplace. Employers will also have a specific duty to provide information, including personal information, related to a risk of workplace violence and harassment from a person with a history of violent or harassing behaviour. If an employee can be expected to encounter a volatile person in his or her work, and there is a risk of workplace violence or harassment likely to injure the worker, then the employee must be given relevant information about the person, including personal information but no more than what is reasonably necessary to protect the worker from physical injury. This will have to be done in conjunction with existing privacy requirements.

In addition, employers will be required under the new provisions to provide appropriate information, instruction and training for workers on the contents of the workplace violence and harassment policy and program.

Measures and procedures for workers to report incidents of workplace violence and harassment to the employer must be implemented, as well as a process setting out how the employer will investigate and deal with incidents and complaints of workplace violence and harassment.

Furthermore, the amendments would bring workplace violence and harassment situations under the “work refusal” procedures of the OHSA. As a result, a worker may refuse work if workplace violence or harassment is likely to endanger him or her.

Although employers may already have policies aimed at workplace violence and harassment under human rights legislation or to protect them from civil liabilities, it will be necessary to review these policies or draft new ones to be consistent with OHSA requirements as well as human rights requirements.

Even though Bill 168 has brought the issue to the forefront, it is important to note that all employers across Canada have a duty to prevent and protect workers from violence, and at times harassment, under occupational health and safety legislation. This obligation is addressed specifically under OHS law or regulations in federally regulated workplaces, in Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, Prince Edward Island and Saskatchewan. Quebec requires employers to prevent “workplace psychological harassment”, in its labour standards law. In the remaining jurisdictions, and also in Quebec, this duty is implied by the OHSA under the “general duty clause”.

Furthermore, human rights legislation also requires employers across Canada to have anti-discrimination and harassment policies to prevent harassing or violent behaviours and actions that create a hostile work environment, meaning actions that turn into harassment or discrimination based on a prohibited ground under human rights legislation.

This means all employers will have to address the issue of violence and harassment prevention on both a human rights and a health and safety perspective.

After reading all this, I am sure an employer will feel exasperated, and maybe a bit apprehensive of the additional burden they have regarding the safety and welfare of their employees with respect to domestic violence and disclosure of personal information such as a person’s history of violence.

For now, The Workplace violence and harassment prevention: A practical guide for employers published by First Reference (valued at $79.00) will assist all employers in any jurisdiction including Ontario in developing their health and safety violence and harassment prevention plan and policy.

How do you feel about your existing or new violence and harassment obligations under the law? Do you think making employers responsible for preventing domestic violence intruding in the workplace is too high of a burden? Do you think it is possible to obtain or disclose information about a person’s violent history without violating applicable privacy legislation or rights?

Thanks for providing your comments! Everyone who participated was sent a copy of Workplace violence and harassment prevention: A practical guide for employers. The contest closed on Wednesday December 23, 2009.

Yosie Saint-Cyr
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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7 thoughts on “Ontario Bill 168 passes: workplace violence and harassment prevention addressed
  • Yosie Saint-Cyr says:

    Thanks Steven and Barry, I totally agree with your insights… I really do not see how employers will be able to do without expert health and safety and/or legal advice from the get go of an investigation (complaint really!)

    I have a feeling that the standard of due diligence will be elevated to a whole other level.

  • Steven Potter says:

    Complaints can come in all shapes and sizes and one size does not necessarily fit all when it comes to addressing and investigating such matters.

    If an employer binds itself to a standard investigatory approach they could be held accountable to follow that approach regardless of its appropriateness to the situation.

    I am not a lawyer, but I recommend that in “setting out how the employer will investigate and deal with incidents and complaints of workplace violence and harassment”, that employers leave sufficient flexibility at the outset of the investigation to determine the best method for proceeding, e.g. putting “obtaining specialist or legal advice, as required” as an up-front step.

    I too see a trend in this and other legislation whereby the government is shifting its responsibilities to employers – and not without cost to the employer.

    As always, we await regulations (and subsequent jurisprudence) before we will know the full impact on the employer – and the practical effect on the safety of employees.

  • Barry Wilkinson says:

    What a can of worms.
    “Employers will also have a specific duty to provide information, including personal information, related to a risk of workplace violence and harassment from a person with a history of violent or harassing behavior.” “This will have to be done in conjunction with existing privacy requirements.”
    Are we now to be judges or juries or lawyers to determine what personal info we can disseminate.
    I agree with the intent of the legislation, but as usual the government is pushing questionable requirements back on the Employers.

  • Yosie Saint-Cyr says:

    Yes Susan… it would require your employer (for his offices in Ontario) to review existing violence and harassment policy and practices to include health and safety requirements; or, implement a distinct violence and harassment policy covering health and safety requirements. Your employer would have to have similar policies if he or she has offices in AB, BC, MB, SK, NL, NS and PEI.

    However, under human rights legislation your employer already has an obligation to have an anti-harassment policy that should cover preventing harassment and violent behaviours and actions under any of the prohibited ground of discrimination.

    While you review to apply the new OHS requirements, I agree, it would be a good time to look at how effective your existing anti-harassment policy under human rights is, and try to fix existing problems or flaws to minimize liability and retain employees.

  • Susan Trevers says:

    My employer has a couple of thousand employees in offices across the country.
    We have an anti-harassment policy posted on the website that was last modified 5 years ago. All lower level employees have to sign a compliance agreement every year to say they understand and will abide by the policy. But no supervisor is required to attend any training or attest to the existence of the policy.
    Almost 50% of the employees are visible minority and other protected groups. Several supervisors are openly racist. But the HR Dept does not think anything is wrong with that. No one complains – the victims just leave!
    Since the Bill applies to Ontario, will my employer be subject to it since they have several offices in that province? I hope it does and have my empoyer relook its policies and practices.
    It might be costly but well worth the effort. I hate to see valuable employees leave due to harassament. I was a victim too and suffered in silence.

  • Yosie Saint-Cyr says:

    Hi Evita, you never know… regulations are not yet in place… there might be some exemptions for companies with less than 5 employees similar to the requirement of having a written occupational health and safety policy.

  • Evita Sanders says:

    Understanding that violence is quite a risk in the workplace it is a heavy burden for a small company to take responsibility, especially for domestic violence. We could potentially put additional people at risk just by getting involved. Of course, us thinking about it is the point of the exercise!