Bill 168, An Act to amend the Occupational Health and Safety Act (OHSA) with respect to violence and harassment in the workplace received first reading in the Ontario legislature on April 20, 2009. Under Bill 168, OHSA protections for employees are now explicitly extended to the protection of employees from violence and harassment in the workplace. Bill 168 would require employers to establish workplace violence and harassment policies, develop programs to implement such policies, and assess the risk of workplace violence.
Definitions of workplace violence and harassment
Bill 168 defines "workplace harassment" and "workplace violence" as follows:
Workplace harassment means 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.
Workplace violence means:
- the exercise of physical force by a person against a worker in a workplace that causes, or could cause, physical injury to the worker; and/or
- an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.
The definition of "workplace harassment" is broad; unlike "harassment" as defined in the Human Rights Code, the definition of "workplace harassment" under Bill 168 includes conduct that is not related to a prohibited ground of discrimination, e.g.; sex or race. The current definition of "workplace violence" only deals with physical harm or injury.
Bill 168 requires employers to assess the risk of workplace violence that may arise and to report the results of the assessment to the joint health and safety committee or its representative. Bill 168 also places an obligation on employers and supervisors to provide information, including limited personal information, to a worker about a person with "a history of violent behaviour" if:
- the worker could be expected to encounter that person in the course of his/her work; and
- the risk of workplace violence is likely to expose the worker to physical injury.
Bill 168 does not provide guidance on who would be defined as a person with a "history of violent behaviour." In addition, under the current draft the person must have a history of "violent" behaviour, not "harassing" behaviour, in order for the disclosure obligation to be triggered.
Bill 168 explicitly addresses the issue of domestic violence in the workplace by requiring employers to "take every precaution reasonable in the circumstances" to protect workers from domestic violence that would likely cause physical injury to workers in the workplace. This obligation on the employer arises only if the employer is aware, or ought reasonably to be aware, of the situation. What constitutes "domestic violence" is not defined.
Bill 168 as drafted would also amend Part V of OHSA so that workers would have the right to refuse or stop work where they felt endangered by workplace violence. In such cases, the worker's refusal to work would be investigated by the employer and, if required, a Ministry of Labour inspector.
The OHSA already provides that employers must take every precaution reasonable under the circumstances for the protection of a worker; Bill 168 provides that these duties of employers' and supervisors' would apply to workplace violence and harassment. Bill 168, if passed into law in its current form, will place specific obligations on employers to develop and implement polices and programs to deal with violence and harassment in the workplace.