On April 20, 2009, the Ontario government officially introduced Bill 168 which proposes amendments to the Occupational Health and Safety Act (the “Act”). The amendments address two aspects of workplace violence: (1) harassment in the workplace, and (2) workplace bullying.
If the amendments become law, a range of new obligations will be placed on employers, including assessing the level of risk of violence in a workplace, providing written policies to deal with the risk, requiring the implementation of programs aimed at reducing the incident of violence within the workplace, and obliging employers to report incidents of violence to the health and safety committee. There will also be a positive obligation on employers to take precautionary measures should violence appear likely to occur within the workplace. The amendments define “workplace harassment” as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.
Employers should take note that this definition of harassment goes beyond harassment in the Human Rights Code of Ontario, which is harassment related to a prohibited ground, such as sexual harassment or racial harassment. Under the proposed amendments, harassment need not be linked to any human rights ground. It is a codification of what is commonly known as “psychological harassment” or “personal harassment”. The other key concept in the amendment is “workplace violence”. It is defined as,
The exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, An attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.
The legislation is potentially controversial in that it requires employers to provide personal information that is “reasonably necessary” about employees who have a history of violent behaviour. Information must specifically be provided if (1) a worker is expected to encounter that person in the course of his/her work and (2) if there is a risk of physical injury to an employee.
In addition, employees will be able to refuse work which places them in a position where they are likely to be injured through workplace violence.
If Bill 168 is passed, workplace harassment and workplace violence will be included within the sphere of issues to which, according to the Act, employers must “take every precaution reasonable in the circumstance for the protection of a worker.” This phrase sends a strong signal to employers that they must ensure both that the risk of workplace harassmentemployers respond swiftly and proactively to any acts of harassment or violence.
What does this mean for employers?
Bill 168 clearly indicates that employers must take an active approach in managing potential risks of harassment and violence in the workplace. Employers should prepare through the creation or updating of policies and procedures for both anticipating and reacting to violence in the workplace. We are working with many of our clients in anticipation of these legal changes by broadening their current “Respect at Work” or “Human Rights in the Workplace” policies to include not only explicit prohibitions against violence, but also clear directions to employees on how and where potential or actual violent incidents in the workplace are to be reported.
Recognize if your organization is particularly vulnerable to violence
We know that not all workplaces are the same, and that some are more vulnerable to violence. For example, studies show that nurses in hospitals are particularly vulnerable to violence from patients. If yours is a workplace where violence or potential violence is more prevalent, additional care must be taken to create effective policies and reporting mechanisms, as well as assessments of potential violence in the workplace.
Opening lines of communication
Employers should ensure not only that employees are made aware of policies related to violence, but that they pass on information regarding any potential risks of violence. This is particularly relevant given the proposed legislation’s positive obligation regarding making employees aware of colleagues with a history of violence. and violence is minimized and that