Unfortunately, Bill 168 as it stands is vague with regard to what employers must actually do in cases where domestic violence enters the workplace. Legal authorities seem to have little direction to offer on the matter as well.
Writing for Canadian Occupational Safety magazine, Mari-Len De Guzman looks at a new seminar on Bill 168 presented by Gowlings. At the seminar that De Guzman attended, Goldie Bassi, an associate at the law firm had little to say about the domestic violence clause, noting only that:
“While there is no specific duty on the employer to report domestic violence issues, employers should build domestic violence into their health and safety policies…
“By building it into the policy, employers and employees will have guidance on how to handle domestic violence that could endanger the workers … The best way is to approach and speak to the person privately.”
Law firm, Filion Wakely Thorup Angeletti LLP, offers somewhat clearer guidance in a document titled, “Ontario’s Bully-Busting Bill: What It Means for Employers”.
“Employers need to educate employees about domestic violence, including signs of it, recognizing situations where a person is at risk, and how they can help and respond. Employers not only need to undertake the training, they need to be able to prove that they have undertaken this training.
“Employers should also be aware that the duty to take every precaution reasonable in the circumstances for the protection of the worker against domestic violence will not necessarily be confined to a single location. … Accordingly, an employer’s duties to take reasonable precautions to protect a worker from domestic violence would not necessarily be confined to the employer’s main place of business, but would extend to anywhere that the worker works with the possible exception of the worker’s residence.”
I’ve found numerous mentions of the privacy concerns associated with the domestic violence clause, but it seems nobody wants to offer a firm opinion.
If the law passes, more or less in its current form, it will likely turn out that the true question is simply: what must employers do to perform due diligence with respect to domestic violence in their workplaces?
In Gowlings’ OHSLAW™ Podcast for July 2009, Bassi offers the following four basic steps employers should take to comply with the new law, as it stands:
- Prepare an occupational health and safety policy that addresses workplace violence and harassment. This includes:
- Reviewing the policy at least once a year and posting the policy for employees to view
- Prepare and implement a workplace violence and harassment prevention program, including:
- Procedures to control risks that could expose workers to violence; for summoning assistance in the event of a violent incident or threat thereof; for reporting incidents to a supervisor or employer; and on employer investigations and responses to incidents
- Conduct risk assessment on workplace violence and harassment, including domestic violence
- Train and inform workers on the above
Employers might also want to consider reviewing their privacy policies or federal and provincial privacy law to get an idea of where they can draw the line on investigating employees suffering from domestic abuse.
For the moment, it appears that there’s little more to say on the implications of the domestic violence clause in Bill 168. The bill might yet undergo revisions as it passes through the legislature, and Ontario’s employers will have to wait and see how it unfolds in the coming months.
First Reference Human Resources and Compliance Assistant Editor