Believe it or not, it’s been close to a year since Ontario enacted Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009, with all of its many new obligations. (Well, the anniversary is four months away, but I’m anxious for summer.) At First Reference Talks, we’ve been discussing the Act and its impacts ever since, and we hope that our readers have implemented the measures necessary to comply with the new law.
I’m going to go out on a limb here and say that most of the requirements of the Act are uncontroversial, and most organizations should have little trouble understanding them and complying. However, one aspect of the law has caused more discussion and confusion than any other: the domestic violence provisions, which require employers to intervene in instances where they suspect (based on reasonable evidence) that an employee has suffered or is suffering from domestic violence, particularly if that violence might reach into the workplace.
The confusion comes from the fact that in order to protect the safety of an abused employee and others in the workplace, the employer is required to disclose private personal details about the abused employee’s life. In other words, the law creates a sort of legal hierarchy in which safety trumps privacy. Interestingly, some of the clearest advice I’ve read on the topic so far comes from an unexpected source: trucking industry magazine, Truck News.
[Bill168] imposes a lot of very strange, new obligations on employers. … The legislation is good. It tells people ‘what.’ Where I think it falls down is that it doesn’t tell them ‘how,’ says Jim Van Allen, president of Behavioural Science Solutions Group Inc., an Orillia, Ontario-based firm that specializes in managing potentially dangerous situations.
This situation raises a number of problems. One, employers and workers are not experts on the signs of domestic violence, and they can’t be expected to feel confident prying into others’ personal business. The law, however, forces this obligation on them. Nonetheless, employers might pretend not to see the signs, thus neglecting their duty and placing other workers at risk.
However, “Standing by and choosing to remain wilfully blind is not a defence,” according to David Reiter, partner at Aird & Berlis LLP. Moreover, “once there is objective evidence of the distress, the duty [to intervene] is triggered. If there is a workplace violence incident, the employer could be prosecuted for failing to take all reasonable precautions to prevent the incident.”
Nonetheless, while it will take some time for employers to understand their obligations with respect to domestic violence ant their workplaces, and for courts to develop reliable precedents, “employers ought not to tie themselves in knots over the privacy issue.” Jo Anne Payne, senior administrator of educational services with the Limestone District School Board in Kingston, Ontario, says school boards have effectively performed these obligations for decades:
Professionals working with children are a special case. They are often under a positive duty to report legitimate concerns about children potentially at risk of violence. But in fulfilling that duty they have become pretty good at picking up the early-warning signs and acting in such a way that respects both privacy and the need to protect children and adult colleagues.
Back to Van Allen:
It is possible to distinguish between the spurious and the legitimate threat [of domestic violence entering the workplace]. Once a legitimate threat has been identified, there is a range of management solutions at an employer’s disposal. It’s not an exact science, but it’s pretty good, and it’s a skill set that employers can learn.
In other words, training is key. Employers must feel confident that they can identify signs of domestic violence—and also bring up the issue in a private and sensitive manner that allows a victim to feel comfortable enough to discuss her or his troubles. (Can we get a group of representatives from school boards across the province to develop some sort of training program?)
Another important point is to avoid putting your head in the sand. If an employee comes to you without prompting, you must listen and you must act. Says Van Allen, “Doing nothing is not a strategy for dealing with workplace violence.”
First Reference Human Resources and Compliance Editor