Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 finally passed third reading on December 9, 2009 and is awaiting royal assent to become law. The bill will come into force six months after it receives royal assent (which is expected sometime mid-2010), and will make a number of significant changes to the Occupational Health and Safety Act (OHSA). Specifically, under the new provisions, employers (including supervisors and managers) are required to assess the risks of violence and harassment that may arise from the nature of their workplace, the type of work or the conditions of work. Once the risk assessment is completed, employers are required to prepare a written workplace violence and harassment prevention plan and policies. The policies will need to be posted in a conspicuous location in the workplace. In addition, employers will be required to review the policies “as often as is necessary”, but at least annually.
New provisions also require employers to take precautions to protect workers from domestic violence. This involves taking every precaution reasonable in the circumstances for the protection of the worker if an employer becomes aware, or ought reasonably to be aware, of domestic violence that would likely expose a worker to physical injury in the workplace. Employers will also have a specific duty to provide information, including personal information, related to a risk of workplace violence and harassment from a person with a history of violent or harassing behaviour. If an employee can be expected to encounter a volatile person in his or her work, and there is a risk of workplace violence or harassment likely to injure the worker, then the employee must be given relevant information about the person, including personal information but no more than what is reasonably necessary to protect the worker from physical injury. This will have to be done in conjunction with existing privacy requirements.
In addition, employers will be required under the new provisions to provide appropriate information, instruction and training for workers on the contents of the workplace violence and harassment policy and program.
Measures and procedures for workers to report incidents of workplace violence and harassment to the employer must be implemented, as well as a process setting out how the employer will investigate and deal with incidents and complaints of workplace violence and harassment.
Furthermore, the amendments would bring workplace violence and harassment situations under the “work refusal” procedures of the OHSA. As a result, a worker may refuse work if workplace violence or harassment is likely to endanger him or her.
Although employers may already have policies aimed at workplace violence and harassment under human rights legislation or to protect them from civil liabilities, it will be necessary to review these policies or draft new ones to be consistent with OHSA requirements as well as human rights requirements.
Even though Bill 168 has brought the issue to the forefront, it is important to note that all employers across Canada have a duty to prevent and protect workers from violence, and at times harassment, under occupational health and safety legislation. This obligation is addressed specifically under OHS law or regulations in federally regulated workplaces, in Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, Prince Edward Island and Saskatchewan. Quebec requires employers to prevent “workplace psychological harassment”, in its labour standards law. In the remaining jurisdictions, and also in Quebec, this duty is implied by the OHSA under the “general duty clause”.
Furthermore, human rights legislation also requires employers across Canada to have anti-discrimination and harassment policies to prevent harassing or violent behaviours and actions that create a hostile work environment, meaning actions that turn into harassment or discrimination based on a prohibited ground under human rights legislation.
This means all employers will have to address the issue of violence and harassment prevention on both a human rights and a health and safety perspective.
After reading all this, I am sure an employer will feel exasperated, and maybe a bit apprehensive of the additional burden they have regarding the safety and welfare of their employees with respect to domestic violence and disclosure of personal information such as a person’s history of violence.
For now, The Workplace violence and harassment prevention: A practical guide for employers published by First Reference (valued at $79.00) will assist all employers in any jurisdiction including Ontario in developing their health and safety violence and harassment prevention plan and policy.
How do you feel about your existing or new violence and harassment obligations under the law? Do you think making employers responsible for preventing domestic violence intruding in the workplace is too high of a burden? Do you think it is possible to obtain or disclose information about a person’s violent history without violating applicable privacy legislation or rights?
Thanks for providing your comments! Everyone who participated was sent a copy of Workplace violence and harassment prevention: A practical guide for employers. The contest closed on Wednesday December 23, 2009.
Human Resources and Compliance Managing Editor