Employers have always had an obligation under the Occupational Health and Safety Act (the OHSA), to take all reasonable precautions to protect workers, a duty which is arguably already broad enough to encompass an obligation to protect workers from violence in the workplace. The recent amendments to theOHSA, which come into force June 15, 2010, confirm the extent of this duty, and also outline a number of specific steps employers must take in relation to violence and harassment at work.
The amendments will require all employers, including franchisee and franchisor employers, to: (i) assess and report risks of violence in their workplaces; (ii) develop and implement policies and programs with respect to workplace harassment and violence; (iii) inform their workers about individuals with a history of violent behavior (to the extent necessary to prevent physical injury); and (iv) take all reasonable precautions to protect their workers from violence in the workplace.
i) Assess and Report Risks of Violence in the Workplace
One of the new duties of employers will be to undertake a risk assessment of their workplace. In undertaking this assessment, it will be useful for an employer to consider the general factors that increase the likelihood of violence, such as interaction with the public, working with money, valuables or prescription drugs, or working alone or in isolated areas.
The assessment need not be in writing unless required by a Ministry of Labour inspector, although it is good practice to have a written record of the assessment process. The results must be communicated to the health and safety committee. The risks must be reassessed as often as necessary to ensure that the employer’s policy and programs remain effective in protecting workers from workplace violence.
Once the risks have been identified, the amended OHSA will require employers to develop measures and procedures to control these risks as part of the workplace violence program. There are a number of changes employers can make within their workplace to reduce or eliminate the risks. Some examples include: increasing building security through the introduction of coded cards to control building access; developing safe work procedures, such as working alone or dealing with angry customers; and making physical changes to the workplace, i.e., increased lighting.
ii) Develop a Policy and Program on Workplace Violence and Harassment
Under the amended OHSA, employers are required to develop written policies on workplace violence and harassment and programs to implement them, regardless of size of the workplace or number of workers. The policies must be posted in a conspicuous place in the workplace and reviewed as often as necessary, at least annually. Employers must also provide appropriate information and instruction concerning the workplace violence and workplace harassment programs.
The Ontario Ministry of Labour has published guidelines to provide further details about what should be included in the workplace violence and harassment policies, as well as sample policies.
Workplace Harassment Program
The purpose of the workplace harassment program is to implement the workplace harassment policy. The OHSA amendments mandate that the workplace harassment program provide measures and procedures for workers to report incidents of workplace harassment to their employer or supervisor, and outline how the employer will investigate complaints of workplace harassment.
Workplace Violence Program
Similar to the workplace harassment program, the workplace violence program is intended to implement the workplace violence policy, and must include:
- measures and procedures to control the risks identified in the workplace assessment which may expose a worker to physical injury, summoning immediate assistance when workplace violence occurs or is likely to occur and for workers to report incidents of workplace violence to the employer or supervisor; and
- a process for how the employer will investigate and deal with incidents or complaints of workplace violence;
The reporting and investigation process for complaints of violence or harassment are very important. The employer should take care to reduce the barriers to reporting incidents or concerns related to violence or harassment by making the process known and easily accessible, reassuring employees there will be no reprisals for complaints, and ensuring that the process is confidential to the greatest extent possible. Employers should also ensure that the process provides for a timely response, and is perceived to be fair and impartial.
iii) Disclosure Obligations
The amended OHSA will require employers and supervisors to provide information regarding a person with a history of violent behavior. This will require employers to balance the rights of the potential victim of violence and the privacy rights of the person with a history of violent behaviour. If the worker can be expected to come into contact with that person, and the worker is likely to be exposed to physical injury, the employer will have an obligation to convey as much information as, and no more than, is “reasonably necessary to protect the worker from physical injury.” This provision will draw employers into making difficult judgment calls, with minimal guidance to date from the government.
iv) Other Precautions to Protect Workers
Refusal to Work
The amended OHSA will give employees the right to refuse work if the employee “has reason to believe that…workplace violence is likely to endanger himself or herself,” subject to the process outlined in the OHSA, as amended.There is an exception to this rule for certain workers, such as police officers and hospital employees, when the risk is inherent or a normal condition of that work.
The amendments will also require employers to take steps to ensure the safety of a worker when the employer knows or “ought reasonably” to be aware of domestic violence that may occur in the workplace.
Franchisor and franchisee employers should promptly review and make any necessary amendments to their workplace policies, programs, procedures and training methods in light of the impending amendments to the OHSA regarding workplace violence and harassment. Failure to comply with the new amendments will constitute an offence under the OHSA. Upon conviction, an individual may be fined up to $250,000 and/or imprisoned for up to twelve months, and a corporation will be liable for up to $500,000.