ONTARIO GOVERNMENT INTRODUCES BILL 168

(The Occupational Health & Safety Amendment Act)

On April 20, 2009, the Ontario Government introduced Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009. If passed, Bill 168 would impose new obligations on employers in respect to harassment and violence in the workplace.  Employers will be required to develop workplace violence and harassment policies, assess the risk of violence in its workplace, address domestic violence issues, and alert co-workers to any person with a violent history.

We have compiled notes on the proposed legislation to keep you informed on how it might affect your workplace and internal health & safety policies.

WHAT IS “WORKPLACE VIOLENCE” AND “WORKPLACE HARASSMENT”

Bill 168 defines “workplace harassment” as engaging in a course of vexatious comment or conduct against a worker in a workplace, which is known or ought reasonably to be known to be unwelcome.  “Workplace violence” means the exercise of physical force by a person, or an attempt to exercise physical force against a worker in a workplace, which could cause physical injury to the worker.

You will notice the definition of “workplace violence” does not make any reference to psychological harm, unlike Bill 29, which was previously introduced.  Also important to note is the definition of “workplace harassment is very broad in comparison to the definition of “harassment” as defined in the Human Rights Code.

POLICIES RELATED TO WORKPLACE VIOLENCE AND HARASSMENT

The Bill requires employers to prepare a written policy with respect to workplace violence and workplace harassment. The policies must be posted (and reviewed annually) and employees must receive training on these policies. Different requirements would apply to workplaces of five or fewer employees.

ASSESSING THE RISKS OF VIOLENCE IN THE WORKPLACE

The Bill requires an employer to assess the risk of workplace violence in their specific workplace taking into account the nature of the workplace, conditions of work and the type of work performed.

The risk assessment must also factor in both common risks at other similar workplaces and risks specific to the employer’s workplace.  A copy of the risk assessment and its results would need to be provided to the joint health and safety committee or health and safety representative.  Employers, who are not obligated to have a committee or representative, must advise employees on how to obtain copies of the assessment and its results and it must be provided to workers on request.

DOMESTIC VIOLENCE ISSUES

The Bill requires an employer to “take every precaution reasonable in the circumstances for the protection of the worker if:

[listdot]

• a domestic violence situation would likely expose a worker to physical injury in the workplace and,
• the employer becomes aware or ought to reasonably be aware of the situation. [/listdot]

DISCLOSING PERSONS WITH A HISTORY OF VIOLENCE

The most sensitive aspect of the Bill is the requirement to provide information, including personal information, to an employee about a person with “a history of violent behavior” provided the following applies:

1. the worker can be expected to encounter the person in the course of his or her work; and
2. the risk of workplace violence is likely to expose the worker to physical injury.

The above applies only to situations where disclosing the information is reasonably necessary to protect workers from physical injury.  A specific definition of what constitutes “a history of violent behavior” is not provided.  The employer would need to devise a notification process for persons with a history of violence (including suppliers, customers, patients, etc.) so workers who may encounter the person are aware of the risks.  Clearly, disclosing this type of personal information about an employee (or other person) may cause an employer to inadvertently violate other laws (i.e. privacy, human rights, etc.).

WORK REFUSAL

(in relation to the threat of workplace violence)

The Bill permits a worker to refuse to work where there is sufficient reason to believe workplace violence is likely to endanger the employee.  The Act currently prohibits certain workers such as police officers, firefighters, correctional officers and hospital employees from refusing work when the unsafe condition is inherent in the work or is a normal condition of employment. The standard work refusal process would be followed (i.e. investigation of work refusal, visit from MOL inspector where required, etc.)

REPORTING OBLIGATIONS

The Bill requires an employer to report and provide specific information of the workplace violence incident to the joint health and safety committee within four days of its occurrence.

IMPLEMENTING A WORKPLACE VIOLENCE PREVENTION PROGRAM

An employer will be required to develop and maintain a program to implement the workplace violence policy. The program must include measures and procedures:

[listdot]

• to control the risks identified in the risk assessment or reassessment;
• to summon immediate assistance when workplace violence occurs or is
• likely to occur including when a threat of workplace violence is made;
• for workers to report incidents or threats of workplace violence to the
• employer or supervisor;
• to investigate and deal with incidents, complaints or threats of workplace
• violence; and any further elements required by regulation. [/listdot]

IMPORTANT BILL 168 POINTS TO CONSIDER

The Government is clearly taking an increased interest in the very real problem of workplace violence and harassment and therefore it is fairly likely some version of Bill 168 will be passed into law in the near future.  In preparation, employers may want to take steps to do the following:

[listdot]

• review their current policies and procedures as they relate to harassment and workplace violence and update accordingly
• consider areas of concern and triggers for violence in your workplace and take steps to rectify these issues now
• include these items in your joint occupational health & safety meetings to get the members talking about risks in your workplace
• include workplace violence and harassment training in your new hire orientation process [/listdot]

Pivotal will keep you updated on the progress of Bill 168 and how it can affect your workplace.  Let us know if you have any questions in the meantime.