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:
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.
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).
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.
First Reference Human Resources and Compliance Managing Editor