The Ontario Ministry of Labour (MOL) recently released guidelines with respect to the recent amendments to the Ontario Occupational Health and Safety Act (OHSA) concerning workplace violence and harassment.
The guidelines provide further detail on what must be included in the workplace violence and harassment policies that will be required under the amended OHSA, as well as sample policies. The guidelines state that the policies should:
- show an employer’s commitment to protecting workers from workplace violence and harassment;
- address violence and harassment from all possible sources (e.g., customers, clients, employers, supervisors, workers, strangers and domestic/intimate partners);
- outline the roles and responsibilities of the workplace parties in supporting the policy and program; and
- be dated and signed by the highest level of management at the workplace.
Employers are required to implement these workplace violence and harassment policies regardless of size of the workplace or number of workers.
Some other points in the guidelines worth noting include:
- An assessment of the potential for workplace violence needs to be done for each worksite. For example, a company which operates a chain of retail stores could perform a standard assessment, but would also have to perform a location-specific assessment at each location so that the violence program addressed risks and conditions specific to each workplace.
- A person’s right to privacy and a worker’s right to be informed of workplace violence risks should be balanced. (If in doubt, the guidelines suggest that employers seek legal advice).
- Employers do not have to conduct criminal background checks on people in the workplace.
- Where there are potential risks of domestic violence spilling over into the workplace, it may be necessary to create an individual safety plan for a specific worker.
- An employer may still be required to take action to protect a worker who is the potential target of domestic violence, regardless of the worker’s wishes.
- Where there is an act of violence or threat of violence, the police should be contacted immediately.
- Workplace harassment does not include job assessments and evaluations, disciplinary action, or differences of opinion or minor disagreements between co-workers.
- Work cannot be refused on the grounds of workplace harassment.
- Workplace harassment is recognized as a potential trigger for workplace violence.
- It is not the role of Ministry inspectors to mediate specific allegations of workplace harassment – these should be handled by the Ontario Human Rights Tribunal, grievance arbitration or civil litigation.
There are a number of issues, however, which the guidelines do not address. For example:
- What is the exact scope/breadth of the “workplace” for purposes of the policies the employer must write and the risk assessments they must carry out?
- The guidelines state that the test is whether the worker is being directed and paid to be near there. Does this include client social functions and other off site activities?
- Each employer must undertake a risk assessment. How scientific and detailed must a risk assessment be, particularly for workplaces where the risk of violence is likely low?
- In identifying and dealing with persons with a history of violent behaviour, how would an employer know the specific triggers for violence in the individual?