Seven Canadian jurisdictions require employers to assess the risk of violence in their workplaces under Occupational Health and Safety (OHS) legislation or regulation, including Ontario, British Columbia, Manitoba, several maritime provinces and the federal jurisdiction. Ontario’s recently enacted workplace violence amendment (i.e., Section 32.0 of the OHS Act, formerly Bill 168) and the federal regulation (i.e., Part XX of the Canada OHS Regulations – “Violence Prevention in the Workplace”) both set out specific requirements for completing a workplace violence risk assessment.
Despite the fact that a significant majority of Canadian organizations are legally obligated to conduct workplace violence risk assessments, it appears that uncertainty and inconsistency are commonplace when it comes to the actual (physical) conduct of the assessment. This month, we will take a closer look at workplace violence risk assessments: what they are, what they aren’t, common pitfalls in conducting them and some best practice considerations from the available literature.
There is no readily available or recognized definition of the term “workplace violence risk assessment” although colloquial use of the generic term “risk assessment” is common in the workplace vernacular. In the absence of a recognized definition, perhaps the most defensible approach is to borrow from the authoritative Canadian risk management standard, “CAN/CSA Q850-97 (R2009) Risk Management: A Practical Guideline for Decision-Makers”:
The systematic use of information to: (1) identify workplace violence hazards, (2) estimate the chance for, and severity of, injury or loss to individuals arising from those hazards, (3) evaluate “acceptability” of workplace violence risk in terms of the needs, issues and concerns of affected stakeholders.
Statutory and regulatory requirements
The federal OHS Regulation and the Ontario OHS Act workplace violence provisions came into force in 2008 and 2010 respectively, and arguably represent the new vanguard of workplace violence legislation in Canada. In Ontario, employers are required to assess the risks of workplace violence arising from: a) the nature of the workplace, b) the type of work and, c) the conditions of work. The assessment must take into account: d) circumstances that would be common to similar workplaces and, e) circumstances common to the workplace.
The federal requirements, under Part XX – “Violence Prevention in the Workplace,” are more comprehensive. First, under section 20.4, the employer is required to identify all factors that contribute to workplace violence through a review of: a) the employer’s experience in dealing with workplace violence, b) the experience of employers in similar workplaces, c) the location and circumstances in which work activities take place, d) employees’ reports of workplace violence or the risk of violence, e) the employer’s investigation of workplace violence or the risk of violence and, f) the measures that are currently in place to prevent and protect against workplace violence. As can be seen, this first phase is a hazard identification process.
The second required phase is a risk assessment. Under section 20.5, the employer is required to assess the potential for workplace violence, using the factors identified under section 20.4, by taking account, at a minimum:
- The nature of the work activities
- The working conditions
- The design of the work activities and surrounding environment
- The frequency of situations that present a risk of workplace violence
- The severity of the adverse consequences to the employee exposed to a risk of workplace violence
- The observations and recommendations of the policy committee (e.g., health and safety committee)
- The measures that are already in place to prevent and protect against workplace violence
Over the past three years, I have discussed with a wide range of representatives from Ontario organizations, trade unions, public institutions, OHS/Security/HR consulting agencies and government authorities, how to address the workplace violence risk assessment requirement under section 32.0 of Ontario’s OHS Act. Based on these far-ranging experiences, a number of common pitfalls can be identified in the way some employers approach the workplace violence risk assessment.
1. “Cart before the horse”
Most workplace violence regulations in Canada require employers to: a) conduct a risk assessment, b) develop a policy, c) implement a program and, d) train employees. In approaching these tasks it is all too common for an organization to draft the workplace violence policy, make changes to the violence prevention program and to deliver employee training in violence prevention and response BEFORE conducting a comprehensive risk assessment.
This approach is counterintuitive, as the intention of the workplace violence risk assessment is that it inform and support the development of policies, procedures, control measures and employee instruction. Indeed, Section 32.0.2(2)(a) of Ontario’s OHS Act states that, in implementing its workplace violence policy, the employer must develop “measures and procedures to control the risks identified in the [risk] assessment…” (emphasis added).
In its excellent guidebook designed to help employers meet the requirements of Ontario’s violence prevention requirements under the OHS Act, the Occupational Health and Safety Council of Ontario (OHSCO) sets out the chronological steps recommended in developing workplace violence policies and programs:
- Recognize workplace violence hazards (i.e., hazard identification)
- Assess workplace violence risks (i.e., risk assessment)
- Control the risks of workplace violence (i.e., policy, program and training development)
- Monitor and evaluate the workplace violence program (i.e., continuous improvement)
2. “Just fill out the checklist!”
Another all too common misconception about the risk assessment requirement is that filling out a “risk assessment checklist” is sufficient. There are, of course, many generic workplace violence risk assessment checklists available online. In this scenario, the employer inspects the workplace in a similar vein to many other types of workplace safety inspections. Text boxes on the checklist are marked with a “Pass” or “Fail” and comments (i.e., deficiencies) are noted. Employees may be invited to provide input into the assessment by “speaking with their Joint Health and Safety Committee representative” (or equivalent) and the assessor usually provides the employer or committee with the completed checklist for follow-up.
While the above scenario may be oversimplified, it is illustrative of a fairly common theme where a hazard identification process supplants the required risk assessment process. A hazard is defined in the national risk management standard CAN/CSA Q850 as: “a source of potential harm, or a situation with a potential for causing harm.” The standard goes on to define hazard identification as “the process of recognizing that a hazard exists and defining its characteristics.” Meanwhile, risk is defined in the Q850 standard as “the chance of injury or loss as defined as a measure of the probability and severity of an adverse effect to health…”
The Identification of hazards is but one part of the broader risk assessment process. Performing hazard identification alone fails to meet legislated risk assessment requirements and, more importantly, fails to assess, measure and categorize workplace violence risks in order that they may be addressed in their full context and in order of priority.
3. “Cookie cutter”
Some organizations operate in multiple locations across a province or jurisdiction, and in some cases, the different locations can operate quite similarly (e.g., a retail store chain). When it comes to performing a workplace violence risk assessment, some employers operating out of multiple facilities assess only one or a small number of locations and then apply the findings across the operation. This type of cookie-cutter approach not only cuts corners, but can also fall afoul of the intent, if not the letter, of the law.
In its legal interpretation guide to the Bill 168 amendments of the OHS Act, “Workplace Violence and Harassment: Understanding the Law”, Ontario’s Ministry of Labour sets out the scope of the workplace violence risk assessment as contemplated in the new legislation:
An assessment of the risks of workplace violence should be specific to the workplace. A similar type of work may be performed in multiple locations. However, the assessment must take into account the nature of the workplace and conditions of work. Each location should be assessed for its own unique risks of workplace violence in addition to the common risks.…
For example, a company may operate many retail stores, all providing the same services. However, each store would have a unique location, surroundings and clientele, etc. In addition, the stores may have different interior physical layouts, equipment or hours of operation.
The above approach should not be interpreted as suggesting that the risk assessment at each location should be 100 percent customized. It is envisaged that multi-site organizations may develop some type of risk assessment template that is relevant and appropriate for their industry and/or the type of business they operate. The Ministry of Labour’s position seems to be, quite rightly, that this enterprise risk assessment process or template should be flexible enough to identify local workplace violence hazards, assess the adequacy of existing (local) risk controls and identify the specific areas at each location where the violence prevention and response program needs to be strengthened.
4. “Us” and “Them”
A fundamental principle underpinning all occupational health and safety legislation is the internal responsibility system, which essentially provides that every individual in the workplace bears direct responsibility for workplace health and safety. This principle is enshrined in Section 20.5(f) of the federal OHS Code, Part XX – “Violence Prevention in the Workplace,” where input from the health and safety committee is a factor that must be captured in the workplace violence risk assessment. It is also apparent in Section 32.0.3(a) of Ontario’s OHS Act, which states that the results of the workplace violence risk assessment must be shared with the joint health and safety committee (or equivalent) as well as a written copy of the assessment report.
Unfortunately, when it comes to conducting the workplace violence risk assessment, many organizations eschew the spirit and intent of the legislation (i.e., to bring the workplace parties together). Instead, some employers look for ways to withhold aspects of the risk assessment process from workers. In some cases, the scope of the risk assessment does not incorporate direct input from front-line employees and supervisors. Considering the intent of the exercise is to identify and assess the risk of violence to workers while they are working, it seems incredible that these same workers would not be afforded an opportunity to share their experiences and perceptions on the subject. By not involving employees in the risk assessment process, the employer not only risks falling afoul of the OHS legislation but also loses an opportunity to strengthen (or repair) employee engagement and commitment.
5. “Not our employees, not our problem”
Another variation of the “us and them” approach is the organization that diligently undertakes the obligatory workplace violence risk assessment but ONLY for its own in-house staff. In many workplaces, the workforce is made up of both employees and contractors.
Failing to incorporate contract workers within the scope of the workplace violence risk assessment runs counter to the requirements of OHS legislation in many jurisdictions. In Ontario, for example, employers are required to protect “workers” from violence and harassment in the workplace. The term “worker” is defined in Section 1(1) of the OHSA as “a person who performs work or supplies services for monetary compensation.” There is no distinction between employees contractors, and both must therefore be incorporated within the workplace violence risk assessment. This common sense position is also supported within an abundance of case law.
6. “Travelling workers … they’re not included are they?”
One final pitfall deserving of honorary mention is the case where an employer assesses the risks of workplace violence at traditional “static” work sites, but does not incorporate workers who travel on company business. This approach is immediately problematic for an employer. In the first instance, workers travelling on business away from familiar surroundings and routine activities are more vulnerable to violence in many ways than workers in many traditional work sites.
Failing to protect travelling workers from work-related violence is not legally defensible. The legal definition of the term “workplace” clearly encompasses work-related travel. Under Ontario’s OHS Act in Section 1(1) – Definitions, workplace is defined as, “any land, premises, location or thing at, upon, in or near which a worker works.” In “Workplace Violence and Harassment: Understanding the Law,” the Ontario Ministry of Labour clears up any misunderstanding on the issue:
The workplace violence program must have measures and procedures in place to control the risks faced by mobile workers…. An assessment may not be able to take into account the specific risks related to the nature of every workplace that a mobile worker may visit. However, the assessment should take into account risks associated with the … type of work and work conditions.
A properly conducted workplace violence risk assessment is the cornerstone of an effective, legally compliant workplace violence prevention and response program. When an organization embraces the risk assessment process, engages with its employees and conducts the necessary research and analysis it is surprising how often the results not only garner regulatory compliance but also serve to improve employee morale and workplace productivity.
David Hyde, M.Sc., CPC
David Hyde and Associates
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