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What will Ontario’s Bill 168 mean for businesses? (Part 1)

Bill 168

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All workplaces house risks to employees’ health and safety in varying degrees: factories have machinery that can cause serious injuries; warehouses store loads and move them around with cumbersome vehicles, both of which have the potential to injure; even office environments are far from risk-free, although the threats tend to be less visible, like poor indoor air quality and ergonomic arrangements. However, only in the last decade or so has the issue of violence in the workplace gained wide recognition—and this is an issue that can affect all workplaces indiscriminately.

According to Statistics Canada’s most recent report on workplace violence, Criminal Victimization in the Workplace, 2004:

“17% of all self-reported incidents of violent victimization, including sexual assault, robbery and physical assault, occurred at the respondent’s place of work. This represents over 356,000 violent workplace incidents in Canada’s ten provinces.”

In addition:

“Physical assaults made up a higher proportion of all violent incidents in the workplace, representing 71% of all incidents of workplace violence. This compares to 57% of violent non-workplace incidents.”

Obviously it’s an issue worth looking at. Regardless of the “how” or “why”, legislators across Canada have taken notice, and some have moved to enact legislation explicitly recognizing the danger to employees and their employers of violence at work. Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, Quebec and Saskatchewan, all address violence at work in some form through health and safety legislation and regulations. Ontario might be next on the list, if Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009, passes into law.

This law would legally define both “workplace violence” and “workplace harassment”, in terms of occupational health and safety rather than human rights. Subsequently, employers would have to perform a risk assessment on the potential for violence in their workplaces, and report the results to a committee or employees; they would also have to develop policies and procedures on both workplace violence and harassment, and instruct employees on them.

These new obligations are pretty standard as far as occupational health and safety issues go. However, some commentators have found an additional clause in Bill 168 controversial due to the difficult responsibilities it might place on employers:

“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.”

It seems fair that if employers must protect their employees from violence in the workplace, that protection would also extend to domestic violence that plays out at work. However, several legal commentators and others have pointed out two sticky points in the clause: that the law would oblige employers to act on the risk of violence, if they “ought reasonably to be aware” that it might cause harm to a worker, and that employers must “take every precaution reasonable in the circumstances” to protect a worker who might be at risk.

The main question is: will employers have to cross the line of employee privacy in order to enforce this regulation?

In other words, does this regulation force employers to intrude on their employees’ private lives and information in ways that they would otherwise have no right to do?

Come back tomorrow to read part 2 of ‘What will Ontario’s Bill 168 mean for businesses?‘ for more information on the potential implications of this law for employers.

Adam Gorley
First Reference Human Resources and Compliance Assistant Editor

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Adam Gorley

Adam Gorley is a copywriter, editor and researcher at First Reference. He contributes regularly to First Reference Talks, Inside Internal Controls and other First Reference publications. He writes about general HR issues, accessibility, privacy, technology in the workplace, accommodation, violence and harassment, internal controls and more. Read more
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