By now, most of us involved in Human Resources and Employment Law are all too aware of the fact that Bill 168 will come into force in June of this year. While many respond to announcements of new workplace legislation by adopting a “wait and see” attitude, the reality is that Bill 168 creates positive duties and obligations on the part of employers which cannot simply be ignored. The legislation includes penalties for failure to take required steps.
Perhaps not surprisingly, recent times have seen human resources professionals, and others whose duties involve aspects of human resources or workplace safety, scrambling to understand what Bill 168 is all about and what they need to do in order to comply with this new legislation. Briefly stated, the new legislation provides definitions of both workplace violence and workplace harassment, and requires that organizations undertake a risk assessment, draft workplace violence and harassment policies, and develop programs to implement those policies. Furthermore, Bill 168 requires training and instruction of employees regarding the new policies and programs, and creates a positive obligation on the part of employers to take reasonable precautions to protect workers when the employer is aware that they may be exposed to domestic violence. Bill 168 also requires that employers provide personal information to employees regarding persons with a history of violent behaviour. Finally, Bill 168 expands the existing right to refuse work, so that it now applies where there is a risk of imminent danger due to workplace violence.
The main reason for this new legislation is the Hotel Dieu case, which made headlines across the country. In that infamous incident, a doctor stabbed his colleague and former lover in front of a co-worker. A subsequent report identified no fewer than 16 risk factors that existed and a number of missed opportunities for intervention. Not surprisingly, there was a recommendation that existing laws be improved in order to more fully address workplace violence.
In the course of discussions with clients and colleagues, a number of concerns have been raised regarding the obligations of Bill 168 and how they will be applied to particular circumstances. For example, a number of organizations have expressed concern with respect to the requirement that risk assessments be undertaken relating to each work place. Among other things, questions were raised regarding how such assessments are to be undertaken in the context of home-care workers, who visit clients in their homes in the course of carrying out their duties. Are employers required to visit each client’s home? Are they required to post the legislative notices in those private residences?
Furthermore, concerns have been raised regarding infringements upon privacy rights. Bill 168 provides that if an employer is aware, or ought be aware of domestic violence that is likely to expose a worker to physical injury and which might occur in the workplace, the employer must take every reasonable precaution to protect the worker. How far and how hard does the employer have to prod into the personal lives of its employees? Furthermore, once it becomes aware of such information, what is the employer allowed/required to disclose in order to meet its duty to take reasonable precautions?
Bill 168 also addresses circumstances where an employer becomes aware that someone has a history of violent behaviour. In situations where a worker can be expected to encounter that person in the course of his or her work, and there is a risk of workplace violence that is likely to expose the worker to physical injury, employers have a duty to provide personal information to employees regarding the persons with the history of violent behaviour. Again, how far and how hard do employers have to pry into the personal lives of employees, clients and others? And when they do discover a history of violent behaviour, how widely are they to disseminate personal information, and how broad is the scope of information that is to be disseminated? Clearly, privacy laws will come into play in this analysis.
At this point, we have relatively little guidance with respect to the issues outlined above. Presumably, over time, the government will draft regulations that modify Bill 168 and expand upon these and other issues. My colleagues and I have spoken and written about planning for Bill 168. However, I would welcome any comments and suggestions regarding Bill 168 generally, as well as the issues raised. Does the Bill go far enough in addressing workplace violence? Too far? How do we reconcile the reporting obligations with privacy rights?
Stuart Rudner, Miller Thomson LLP