Bill 168 received Royal Assent on December 15, 2009. Accordingly, employers now have until June 15, 2010 to become compliant with the new changes to the Occupational Health and Safety Act (“OHSA”). The amendments to the OHSA impose new duties on employers to address violence and harassment in the workplace in the form of policies, programs, risk assessments, and the provision of information to workers where a person has a history of violence. For those of you who have been following the developments of the Bill, the primary change made after its final reading was the removal of a duty to investigate, deal with and report threats of workplace violence.
Definitions of Workplace Violence and Workplace Harassment
The Bill defines “workplace harassment” and “workplace violence” in the following manner:
“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:
(a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
(b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
(c) a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.
The definition of harassment includes both “comment” and “conduct”. This creates a broad standard that includes unwelcome physical or psychological harassment. The definition of workplace violence, however, is limited to actual or attempted physical harm.
Policies and Programs
The Bill requires that employers develop workplace violence and harassment policies, which are to be reviewed annually. In addition, employers have to develop programs to implement these policies. These programs must include measures and procedures to:
- control identified risks;
- summon immediate assistance when workplace violence occurs or is likely to occur;
- report incidents of workplace violence to the employer or supervisor; and
- investigate and deal with incidents or complaints of workplace violence.
The policies must be posted in a prominent area in the workplace.
Assessment of Workplace Violence
The Bill requires employers to assess the risk of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work. The assessment must take into account circumstances common to similar workplaces and circumstances specific to the employer’s workplace. A copy of the risk assessment and its results must then be provided to the joint health and safety committee or the health and safety representative. Where there is no committee or representative, employees must be advised of the results of the assessment.
The Bill does not specify how an assessment should be done, or exactly what factors should be taken into account when it is conducted. It also requires that employers reassess the risk of workplace violence “as often as necessary” to protect workers but without specific guidance as to how often reassessment should occur.
Inspectors are now authorized by the Bill to order that assessments and reassessments of workplace violence be provided in written form by employers.
Addressing Domestic Violence
Where an employer becomes aware, or ought reasonably be aware, that domestic violence likely to expose a worker to physical injury may occur in the workplace, the Bill requires that the employer take every reasonable precaution in the circumstances for the protection of the worker. This provision specifies that employers must only become involved when domestic violence may occur “in the workplace”, which, in practice, may be a very difficult line to draw. In addition, the requirement of “ought reasonably to be aware” of domestic violence will likely be difficult to determine. Finally, there may also be concerns regarding a worker’s privacy and when an employer ought to become involved in a worker’s “private” life.
Disclosing Persons with a History of Violence
The Bill requires employers to provide information to workers, including personal information, of a person with a history of violent behaviour. An employer must provide this information if the worker can be expected to encounter that person in the course of his or her work, and the risk of workplace violence is likely to expose the worker to physical injury.
While the Bill provides that employers must not disclose “more information than is reasonably necessary to protect the worker from physical injury”, there are no specific provisions regarding the type and amount of personal information that must be provided.
If the source of the risk is a co-worker, there will also be concerns about the worker’s privacy and the appropriate limits for disclosure. The employer’s obligations under the Ontario Human Rights Code (“OHRC”) will have to be considered as it prohibits discrimination on the basis of “record of offences”. For example, if an employer is aware of and chooses to disclose an employee’s criminal conviction relating to physical violence for which a pardon has been granted and not revoked, there is a risk that the employer could be faced with an OHRC application on the basis of the protected ground of “record of offences”. On the other hand, if they do not disclose such information and an employee is injured, the employer may be in violation of the OHSA.
The Bill permits a worker to refuse to work or perform particular work where he or she has reason to believe that workplace violence is likely to occur. However, the OHSA currently prohibits certain workers, for example, hospital employees, from refusing work when unsafe conditions are inherent in the work or are a normal condition of employment. The Bill allows for a regulation to define when an unsafe condition is inherent in the work or is a normal condition of employment.
The OHSA gives a worker the right to refuse work that he or she believes is unsafe. The OHSA sets out a specific procedure that must be followed in a work refusal. Namely, where the worker reports the unsafe conditions to the employer, an investigation must be immediately conducted. Where the worker has reasonable grounds to believe that the work conditions remain unsafe, the employer or the worker shall cause an inspector from the Ministry of Labour to attend at the workplace to conduct an investigation. It is important that employers and employees, including any health and safety representatives understand this procedure.
Corporate and Personal Penalties for Violations of OHSA
The maximum penalties for a contravention of OHSA or its regulations are set out in OHSA Section 66. A successful prosecution could, for each conviction, result in:
- A fine of up to $25,000 for an individual person and/or up to 12 months imprisonment; and/or
- A fine of up to $500,000 for a corporation.
Bill 168 sets out important new obligations and responsibilities for employers. Employers are reminded that they have until June, 2010, to update their policies, develop programs and conduct risk assessments. Employers need to make sure that their employees have been properly trained in this area and that the policies are posted in a prominent area in their workplace.