Federally regulated employers need to be aware of new amendments to the Canada Occupational Health and Safety (COHS) Regulations which came into force on May 8, 2008 and which now apply to them. The amendments arise from the Violence Prevention in the Work Place Regulations and will form Part XX of the COHS Regulations.

The new amendments deal with work place violence. Although federally regulated companies in Canada already have obligations to reduce or eliminate work place hazards, which may include violence, the new amendments deal with violence in the work place more specifically.

Work place violence is defined as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

Obligations

There are certain positive obligations imposed upon all federally regulated employers, as a result of the amendments. In brief, the federally regulated employer must:

  • Assessment - identify factors that contribute to work place violence and assess the potential for work place violence, by using factors such as nature of the work, working conditions, the work environment, the frequency of “risk of violence” situations and the severity of any adverse consequences. This is likely to be an onerous obligation, particularly as the prudent employer will want to retain documentary evidence of the assessment having taken place and the factors involved.
  • Policy Creation - develop a work place violence prevention G policy, with reference to the assessment already carried out, and post it at a place accessible to all employees.
  • Control Implementation - develop and implement systematic controls to eliminate or minimize work place violence or a risk of work place violence to the extent reasonably practicable, once the potential for workplace violence has been assessed. The controls must be implemented no later than 90 days after the day on which the risk of work place violence has been assessed.
  • Review - review the effectiveness of the work place violence prevention measures and update them either (a) whenever there is a change that compromises the effectiveness of those measures or (b) every three years, whichever comes sooner.
  • Emergencies - implement emergency notification procedures to summon assistance where immediate assistance is required, in response to work place violence. Employees must be made aware of the emergency notification procedures and the procedures must be posted at a location which is accessible to employees, such as a communal notice board.
  • Assistance - implement measures to assist employees who have experienced work place violence, such as the provision of counselling.
  • Training - provide training on the relevant factors that contribute to work place violence. The training is to take place every 3 years and signed records of the training provided must be kept for 2 years after the date on which an employee ceases to perform an activity that has a risk of work place violence associated with it.

Finally, if a federally regulated employer becomes aware of work place violence or alleged work place violence by an employee, the employer shall try to resolve the matter with the employee as soon as possible. If the matter is unresolved after this initial stage, the employer shall appoint a “competent person” (defined in the Regulations) to investigate the work place violence and provide a written report on it to the work place committee or the health and safety representative.

Compliance and enforcement

Health and safety officers have the statutory power to enter a work place and enforce compliance with the Regulations. For example, they may conduct safety audits and inspections, or they may investigate the circumstances surrounding the report of a contravention or an incident of work place violence.

In the event that the health and safety officer is not satisfied, he will ask for an Assurance of Voluntary Compliance (AVC) from the employer (or employee, depending on the circumstances). The AVC is a written commitment by the employer/employee to a health and safety officer that a contravention will be corrected within a specified time. Failure to comply with the AVC is likely to lead to the issuing of a direction. A direction is a written notice directing the employer or employee to terminate and/or correct a contravention within a specified time.

If non-compliance continues despite the direction having been issued, prosecution is likely to be initiated. The maximum penalty for offences is imprisonment for up to two years and/or a fine of up to $1,000,000.

Conclusion

As of May 8, 2008, all federally regulated employers should ensure that they have carried out a work place violence assessment, that they have a policy drafted and posted and that they have training in place. Failure to do so could result in an order compelling compliance which is likely to have the effect of giving control over to a federal health and safety officer and identifying your workplace as one to watch in the future.