New Bill Answers Call for Safer Workplaces

By Janina Fogels

Significant changes may soon be sweeping through Ontario workplaces with respect to heightened protections against violence, assault, harassment, verbal and psychological abuse at work. Bill 168, The Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009, was introduced on April 20, 2009, by Labour Minister Peter Fonseca. The proposed legislation follows extensive consultations with unions, employers, and other stakeholders on workplace violence prevention last fall, and signals the arrival at a crossroads after these last few years of sustained and concerted lobbying.

If passed, Bill 168 would amend the Occupational Health and Safety Act (OHSA) to specifically address workplace violence and workplace harassment as separate and distinct workplace safety issues. This would bring Ontario law in line with other jurisdictions in Canada, such as Quebec, Saskatchewan and P.E.I. For workers in the province, this would broaden the scope of grievances and complaints lodged with the Ministry of Labour.

The duties of employers, supervisors and workers under OHSA have both been clarified to apply specifically to workplace violence. The proposed legislation would require employers to develop policies and – importantly – implement programs to prevent both workplace violence and workplace harassment. Implementation of mandatory policies would become a legal duty. Additionally, the OHSA amendments would expressly require employers to take reasonable precautions to protect an employee from domestic violence in the workplace, and allow a worker to remove themselves from harm if they have reason to believe that workplace violence is likely to endanger them. Under Bill 168, employers must also engage in assessments to measure the risk of workplace violence.

While the language of the amendments falls short in some areas, the spirit and substance of the proposed legislation should be applauded.

Main Features of Bill 168

A. New Definitions of Workplace Violence and Harassment

Bill 168 defines "workplace harassment" 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.

Notably, the definition of “workplace harassment" is very broad. It expands the more common understanding of "harassment", definitively secured by the Human Rights Code. It is not grounds-based, in that harassment under Bill 168 may include conduct that is not related to a prohibited ground of discrimination, such as age, ethnicity, religion, sex, etc. The definition would capture bullying, personal, and psychological abuse.

Bill 168 defines “workplace violence” as follows:

• "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; and/or (b) an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.

Some problem areas are evident here. The definition of violence only deals with actual or attempted physical force which causes or could cause physical injury and does not include the threat of physical force, and does not anticipate the potential for violence enough. The definition also limits workplace violence to acts that cause or could cause physical injury. This may preclude acts of violence which only cause or could cause psychological injury, such as Post Traumatic Stress Disorder, anxiety, depression, and other conditions that arguably are not captured by the term “physical injury”.

Also, the definition of “workplace violence” addresses physical force against a worker per se and does not address violence in the workplace experienced generally, between clients or customers, or by others in the workplace who may not be “workers”, such as students.

B. Workplace Violence and Harassment Policies and their Implementation

Bill 168 requires employers to prepare written policies dealing with workplace violence and harassment. Workers must be trained on these policies, which must be posted in workplaces with more than five workers. The policies must be reviewed by the employer annually.

Under Bill 168, employers are required to develop and maintain a program to implement workplace violence and harassment policies.

The workplace violence program must include measures and procedures to:

• control the risks identified in the workplace violence assessment;
• call for “immediate assistance” when workplace violence occurs or is likely to occur, or when a threat of workplace violence is made;
• report incidents or threats of workplace violence to the employer or supervisor; and,
• set out ways in which the employer investigates and manages incidents, complaints or threats of workplace violence.

The workplace harassment program similarly must also include measures and procedures for reporting and investigating incidents of workplace harassment, and set out exactly how the employer will investigate and deal with incidents of harassment.

If any of these duties are violated or provisions contravened, the penalties in Part IX of OHSA would apply (fines, imprisonment).

C. Risk Assessments for Workplace Violence

Employers would be obliged to assess the risk of workplace violence that may arise, based on the nature of the workplace, the type of work, or working conditions. Risk assessments must take into account circumstances that would be common to similar workplaces as well as circumstances specific to the workplace itself. Bill 168 also requires that workplace violence risks be reassessed "as often as is necessary" to ensure the workplace violence policy and program continue to protect workers.

Bill 168 requires that employers “advise” the joint health and safety committee or the health and safety representative of the results of these risk assessments. If the workplace does not have a joint health and safety committee or a health and safety representative, the workers must be advised of the results of the assessments and of how to obtain a copy of the assessment. This causes some concern regarding the one-way communication envisioned by the Bill, and many unions would prefer to see consultation between the parties instead.

Domestic Violence

The issue of “domestic violence” in the workplace is explicitly addressed in Bill 168. The Bill requires 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. Curiously, domestic violence is not defined and reinforces the false dichotomy between work and home, public and private life. The language of the amendment only addresses physical injury as opposed to the types of harms, hazards and injuries conduct such as harassment, stalking, and psychological and emotional abuse may cause. These are, in fact, demonstrated precursors of physical violence.

D. Disclosure of Persons with a Violent History

Another pioneering aspect of Bill 168 is the obligation on employers and supervisors to provide information, including 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,
• there is a risk of workplace violence likely to expose the worker to physical injury

E. Work Refusals

Bill 168 amends s. 43 of the OHSA on work refusals to add that a worker may refuse to work or do particular work where he or she has reason to believe that workplace violence is likely to endanger him or herself.

F. Notice to Heath and Safety Committee and to the Ministry of Labour

Bill 168 also obliges employers to notify the Ministry of Labour where a person is disabled from performing work or requires medical attention because of an act of workplace violence. This notice provision confirms that injuries to workers from acts of violence are reportable under Part VII of the OHSA. However, there is no notice provision to report to the Ministry of Labour regarding harassment which leads to requiring medical attention or where a person is disabled from performing work.

For a copy of Bill 168, click here.