Ontario’s recently enacted workplace violence amendment (Section 32.0 of the Occupational Health and Safety Act (OHSA), formerly known as Bill 168) places a legal onus on provincially regulated employers to safeguard employees from the risk of domestic violence in the workplace. In the prevailing socio-political climate, additional jurisdictions are likely to follow suit. History has shown that domestic abuse and domestic violence are quite frequent precipitators of serious workplace violence episodes. In legal terms, domestic violence is increasingly becoming a foreseeable workplace risk. In moral terms, inaction on this growing workplace issue would introduce unacceptable human risk.
Unfortunately, when it comes to the inclusion of domestic violence within workplace violence programs (i.e., risk assessments policies, procedures and training), many employers have struggled to chart a definitive course. One reason for this is a lack of clarity in the OHSA, which makes it difficult to identify the employer’s responsibilities in addressing domestic violence risks in the workplace.
This month, we will take a closer look at the issue of domestic violence in the workplace. How should we define “domestic workplace violence.” How might we reasonably interpret employer responsibilities under the OHSA in Ontario (and under common law)? What are some of the practical challenges in managing the risk of domestic violence in the workplace context and how do we overcome them?
Somewhat frustratingly, Ontario’s OHSA does not provide a definition of domestic violence in the workplace context. In its legal interpretation guide to the Bill 168 amendments to the OHSA, “Workplace Violence and Harassment: Understanding the Law,” Ontario’s Ministry of Labour identified that domestic violence is workplace violence when:
A person who has a personal relationship with a worker—such as a spouse or former spouse, former intimate partner or a family member—[causes] physically harm, or attempt[s] or threaten[s] to physically harm [a] worker at work.
Clearly, domestic violence becomes workplace violence when it spills over into a workplace setting. A common mistake in approaching domestic workplace violence, however, is to adopt a more traditional “bricks and mortar” view of the workplace. In this narrow approach, domestic violence risks are seen through the viewfinder of the primary (physical) workplace and not in the wider context of a mobile workforce (e.g., travel to local meetings/events, global business travel, etc.).
Under OHS law, the workplace travels with the worker. It is essentially “wherever the worker is working.” This broad definition of the workplace has been aptly summed up in the Canadian legal context by the Canadian Centre for Occupational Health and Safety in its “Violence in the Workplace Prevention Guide”:
Workplace violence is not limited to incidents that occur within a traditional workplace. Work-related violence can also occur at off-site business-related functions, such as conferences, trade shows, or social events related to work, and in clients’ homes. It can also include violence that occurs away from work, but resulting from work.
Another important factor when considering the scope of domestic workplace violence is the issue of contract workers. In many primary (physical) workplaces—such as an office, hospital, college or industrial facility—contract workers are hired to perform administrative, maintenance, cleaning, security or other duties. Whilst not direct employees of the occupier of the premises, such employees are still “workers” in the context of OHS law. Their safety must still be safeguarded in a similar manner as any direct employees of the occupier of the premises.
Section 32.0.4 of the OHSA sets out the employer’s obligation to manage the risks of domestic violence in the workplace in the following terms:
If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.
The domestic violence provision in the OHSA rests on the tried and tested legal principle of “reasonability.” In order to meet this legal standard, the employer must exercise due diligence in taking all reasonable steps to protect employees in the workplace from foreseeable harm resulting from domestic violence.
From a practical standpoint, the requirements under section 32.0.4 raise three interrelated questions.
1. What steps should an employer take to become aware that a worker is likely to be exposed to domestic workplace violence?
In order for an employer to effectively manage the risk of domestic violence, it must first take steps to facilitate employee awareness of the issue in the workplace. Most employers have some type of workplace violence and harassment policy, respectful workplace policy or an equivalent document; this is a good opportunity to introduce the subject of domestic violence.
In its excellent resource document,”10 Steps to Creating a Domestic Violence Policy for Your Workplace,” WorkSafeBC cautions against adopting a one-size-fits-all domestic violence policy and urges employers to adapt a policy that fits the individual workplace. WorksafeBC goes on to set out the primary elements of an effective domestic workplace violence policy. Key steps in implementing a policy include:
- Decide whether you need a standalone or an integrated policy; most organizations adopt the latter approach but there is no hard and fast rule
- Include a clear statement from the organization and its top management to reinforce the fact that employee safety in relation to the risk of domestic violence is taken seriously
- Briefly explain the purpose of the policy and the benefits to employees and the workplace
- Include definitions and examples of key terms to provide the necessary context; one example is clearly defining the geographical boundaries of the “workplace” making it clear that the policy applies to domestic violence risks away from the traditional “bricks and mortar” workplace
- Make it clear to whom the policy applies and how: the way the policy applies to victims will be different than its application to an employee reporting a concern of domestic violence involving a co-worker; these distinctions should be clear and unambiguous
- Clearly identify the responsibilities of all workplace parties under the policy; this includes, at a minimum, identifying the role of employees, supervisors, witnesses, victims and the employer
- Also identify reporting protocols, including what and when to report, and to whom witnesses or victims should bring concerns of domestic violence
- Set out the guidance and instruction (i.e., training) to be provided to employees to support their understanding of, and adherence to, the policy
- Make a clear “No Reprisals” statement to ensure employees feel confident that there will be no repercussions for reporting suspicions or incidents of domestic violence connected to the workplace
- Publish and disseminate the policy to ensure all employees and other relevant stakeholders have access to it
Many of the steps outlined in the policy guidance above will assist the employer in becoming aware of situations where a specific worker or workers may be at risk from domestic violence in the workplace. The employer must of course ensure that the practices outlined in the policy are in place (e.g., reporting protocols, training) and operate as integral components of the broader workplace violence prevention and response program.
2. How should the employer determine the potential seriousness of any identified threat of domestic workplace violence?
This question moves beyond initial awareness of domestic violence to look at how an employer should assess the potential for injury to workers when a threat of domestic violence has been identified. When should a threat or complaint of domestic violence connected to the workplace be taken seriously? In this scenario, an employee may have come to his or her supervisor to report an escalation of abuse from a former spouse, or a co-worker may have reported overhearing a fellow employee receiving threatening phone calls from a former partner.
The employer will be better prepared to address reports and complaints of domestic violence in the workplace if it plans ahead rather than waiting until it receives a complaint and formulating responses “on the fly.” Having clear and consistent threat assessment protocols is crucial in evaluating the seriousness of any threat, including the threat of violence.
In the context of workplace violence, threat assessment is a term most often associated with managing the risk of violence in schools and higher education institutions. In their insightful 2011 paper, “Campus Threat Assessment and Management Teams: What Risk Managers Need to Know,” threat management experts Jeffrey Nolan, Marisa R. Randazzo and Gene Deisinger identify the five stages of the threat assessment and management process based on recognized standards and best practices.
This flexible process can be readily adapted to fit the broader workplace context. The “threat assessment phase” incorporates three of the five overall steps, as follows:
- Screen initial reports/complaints — Determine whether there is any imminent danger related to the person or situation reported. In the event of imminent danger, established protocols would direct that law enforcement be contacted and other protective steps be taken within the workplace. In the absence of imminent danger the team would move to the next step.
- Conduct a threat assessment inquiry — Information is sought from all persons or parties that may have information about the person or situation of concern. It is important to understand the unique role of the threat assessment team and to emphasize that it should have a wide “information seeking” mandate rather simply responding to the information provided to it.
- Evaluate whether the person or situation poses a threat — At this stage, the threat assessment team must establish the degree of threat the person or situation poses to the workplace. To achieve this, the team first organizes the information it has gathered by subjecting it to a series of pre-determined questions. The answers to these questions determine whether the person or situation of concern poses a threat and the extent of that threat to the workplace. If it is established that the situation or person does pose a threat, the team is then charged with developing, implementing and monitoring a threat management plan to reduce the threat posed to the worker(s) concerned and the workplace.
3. What precautions would be deemed reasonable to protect a worker against an identified threat of domestic violence in the workplace?
The final question picks up where a threat of domestic violence has been identified in the workplace. What steps should the employer take to formulate a reasonable response? In this scenario, it may be that the threat assessment team has established that it is highly likely that an ex-spouse of a front office employee will attend the workplace and that the ex-spouse has the potential to be threatening and/or violent.
At this stage the employer has to move beyond evaluation to identify tangible steps intended to manage the threat of domestic violence. If we return to the five-step threat assessment and management process identified by Nolan et al., we can see that the final two steps address this “threat management phase.” These final two steps are as follows:
- Develop, implement and monitor a threat management plan — If the threat assessment team determines that a person or situation poses a risk of domestic workplace violence, the team moves from an assessment function to a (risk) management function. At this stage a threat management plan needs to be developed, implemented, monitored and documented. Due to the unpredictable nature of workplace threats the plan should be customized to best address the person(s) of concern and situation at hand using available resources and support mechanisms. The team then continues to monitor the situation and adapts the threat management plan as required.
- Close and document the case — Cases or files opened by the threat assessment and management team tend to remain open until the person of concern or situation no longer appears to pose a threat. There is a tendency for attention to wane as cases stretch out, especially in the event that no threat materializes. The team must guard against complacency and take steps to maintain appropriate vigilance, documenting the steps they have taken including their evaluation, re-evaluation and all course(s) of action taken. This documentation is important and may form part of future legal proceedings. Electronic and paper records should be handled with due care and sensitivity under the auspices of the employer’s information and document security protocols.
The literature on domestic workplace violence commonly refers to a version of threat management plan known as a “Safety Plan.” There are two primary types of safety plan and the employer should be familiar with both. The first type is a “Personal Safety Plan,” which identifies actions the threatened worker should take (or not take) in and out of the workplace to enhance their personal safety. While the employee is ultimately responsible for their personal actions, the employer has both an interest and a role to play in recommending resources and lending assistance to the employee in forming their Personal Safety Plan.
A “Workplace Safety Plan” is focused on the security and safety of the threatened worker while at the workplace and while travelling to and from work. In its publication, “Developing Workplace Violence and Harassment Policies and Programs: A Toolbox,” the Occupational Health and Safety Council of Ontario identifies typical items to be addressed within a workplace safety plan, including:
- Door security/access control
- Code words
- Photo of abuser provided to security
- Escorts to personal vehicle or public transportation
- Panic buttons
Safety plans are an important part of the threat management process for both the employer and threatened worker and a proactive employer will have guidelines and templates on hand to facilitate a quick turnaround in the event of a confirmed threat of domestic violence.
Domestic workplace violence is more prevalent than many employers realize and there is an increasing trend under OHS law to identify domestic violence as a foreseeable workplace risk. This means that employers need to chart a definitive course in managing the risks of domestic workplace violence in a reasonable and prudent manner.
This column has identified some of the challenges faced by employers in establishing an effective risk mitigation strategy for domestic violence. It has offered a level of “practical interpretation” of the domestic violence provisions under Ontario’s Occupational Health and Safety Act and has set out a best practices framework for assessing and managing the threat of domestic violence in the workplace setting.
David Hyde, M.Sc., CPC
David Hyde and Associates
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