Bill 168 FAQ Series: Challenges of complying with Bill 168 (Part 1 of 3)

It has been almost six months since Royal Assent was given to the Bill 168 amendments, instituting workplace violence and harassment provisions to the Ontario Occupational Health and Safety Act (OHSA). We are now rapidly approaching June 15, 2010, the date set for the workplace violence amendments to come into force, and thus the date set for all Ontario employers to be in compliance with the new Ontario OHSA workplace violence and harassment provisions contained in Bill 168. 


Implementing Bill 168 involves so much more than creating and posting a new policy. As employers, managers and joint health and safety committees have grappled with the amendments, numerous issues and challenges involved with implementing the new workplace violence prevention requirements have come to light.


Following are some of the key implementation challenges we believe confront both local Ontario and national employers as they bring their organizations into compliance with the requirements of Bill 168. 


FAQs on workplace violence and harassment policies


1.) Should there be separate or combined policies for workplace violence and harassment?


Since statements of policy are a standard starting point for most employers, one of the first key questions arising has been: “Can we have one violence and harassment policy or are separate policies required?”


Bill 168 requires employers to have in place both workplace violence and harassment policies. Where more than five workers are regularly employed in the workplace, these policies must be in writing and must be posted in a conspicuous place. Bill 168 does not specifically require a single policy, or separate policies and, as such, employers are free to draft their policies in the manner they believe is best. 


In considering whether to have one policy or two, employers should consider the following issues:


Reporting:  Employers may wish to have slightly different reporting requirements depending on whether the conduct at issue is workplace violence or harassment. Given the dangers inherent in workplace violence, mandatory reporting of violence from any customer, patient or client, visitor or co-worker, and obligatory remediation are desirable. However, there are separate considerations with respect to harassment as it will be defined under the OHSA. 

The tremendously broad definition of harassment in Bill 168 means that a wide spectrum of conduct would, arguably, be subject to complaint, investigation and remedy under the policy and program. This could include harassment ranging from behaviour based on grounds protected under the Human Rights Code to much more trivial behaviour that can arise as part of workplace disputes. Such harassment can also be perpetrated by a range of individuals from all levels of the organization. Finally, victims may well have different levels of tolerance for harassing behaviour. To that end, the employer may wish to permit a greater amount of discretion in the hands of employees when it comes to reporting harassment by encouraging reporting rather than mandating it.

Initial employee response:  The employer’s statement of expectations within a policy and program on how an employee is to respond to an incident of violence versus harassment will also likely differ.  Many harassment policies suggest that, where an employee feels comfortable doing so, he or she confront the harasser and advise that the conduct or comments are unwelcome. This may well be a prudent step when dealing with harassment, but an employer will not wish to recommend or require that an employee engage in such actions when they are the victims of workplace violence. 

Procedural expectations for responding to violence should be provided, and should range from calling law enforcement officials to reporting to human resources or other contacts, depending on the circumstances.

Existing harassment policy:  Many employers will have discrimination and harassment policies that pre-date the enactment of Bill 168 and were implemented to be responsive to their human rights obligations. Existing human rights-related discrimination, harassment or respectful workplace policies should be amended to comply with Bill 168. This may mean as little as broadening the definition of harassment to ensure that it addresses not only human rights-protected harassment but also OHSA-protected personal harassment (unwelcome conduct or comment) that is not based on a protected ground, and ensuring that any reporting and investigation provisions comply with those required by Bill 168. 

If the employer is drafting a workplace violence policy for the first time, but may have existing harassment policies and programs, it may make sense to create a standalone violence policy and program.

2.) What key items should be in the policies?


The particular content, style and format of workplace violence and harassment policies are, to a large extent, left in the hands of the employer. The employer may choose to have a brief one-page policy which states that the organization is committed to preventing violence or harassment, as the case may be, that it will not tolerate such conduct and that all employees are expected to comply with the policy. The employer may, alternatively, take the opportunity to set out its statement of commitment as well as key aspects of the program, setting out and posting procedural mechanisms and other matters in a longer document.


The Ontario Ministry of Labour (MOL) recently released guidelines on workplace violence and harassment. As such, the MOL has now provided some indication of what they should find acceptable when conducting inspections for compliance. However, each employer will likely have its own desired policy style. The MOL style need not be used verbatim. Employers must work with the policies it drafts on a day-to-day basis, and may use them as a basis for discipline in the workplace, where workplace violence and harassment are perpetrated by workers, supervisors or even management in the workplace. To that end, careful thought should be given to their content.


When preparing a workplace violence policy, the employer should consider:


  • The definition of workplace violence:  Will it mirror the Bill 168 definition or will there be other elements? Is this a national organization or one with operations only in Ontario?
  • The scope and application of the policy:  Does it apply to all employees?  Will it apply to contractors, visitors and guests to the workplace?  Will it apply to social functions or other company sponsored/sanctioned events?
  • Domestic violence:  What will the policy say, if anything, about domestic violence that may manifest itself in the workplace, i.e. will it encourage reporting where a worker is experiencing domestic violence, or believes such violence may occur outside or in the workplace ?
  • The obligations of those in the workplace:  Will the policy detail the duties of the organization, its managers, supervisors and workers? Will it set out procedural mechanisms for reporting so that these are available and posted?
  • Reprisal or retaliation:  Many organizations will want to have a statement that retaliation or reprisal against any person complaining about or participating in the investigation of an incident of workplace violence is prohibited. If so, and considering that discipline is a likely consequence for a breach, the organization should consider providing a definition of reprisal or retaliation.    


When preparing the workplace harassment policy, the employer should have regard to the applicable items listed above — definitions, scope, obligations of workplace parties and reprisal provisions. However, as previously indicated, many employers may have an existing discrimination and harassment policy that could be amended to comply with Bill 168.  


Regardless of whether an existing policy is amended or a new harassment policy is created, given the very broad definition of harassment contained in Bill 168, employers will want to consider including a clear definition of harassment. 


Certain limitations may be placed on the type of behaviour and conduct that will be considered harassment, and trigger investigation and employer response. This may include specifically identifying that isolated act of rudeness or that reasonable exercise of management functions, including performance reviews, job assignments and discipline, do not amount to harassment. This will help ensure that the policy and program are used meaningfully and effectively. For any employer concerned that this may be regarded as heavy-handed, or overly technical, note that the MOL guideline embraces this as appropriate practice.


The amount of detail contained in a policy is, really, a matter of organizational preference. Candidly, many of the items listed above are not legally required to be included in the policy. However, if they are not in the policy, they would be desirable elements for the corresponding program. In deciding upon the level of detail to be contained in a policy, the employer should consider that a more detailed policy may assist in the development of the program, as it will act much like a checklist of items to be addressed, and may also serve to enhance worker understanding, as the policy will be posted and more readily available for review and use by workers.


3.) Is compliance achieved once our policy or policies are prepared?


This is an important question. Employers must remember that the drafting of workplace violence and harassment policies (and posting as necessary) is just the first step towards compliance with Bill 168. Policies alone are insufficient for compliance. They must be accompanied by corresponding programs (the specific workplace procedures and practices that implement the policy) and worker training. Therefore, on June 15, 2010, employers will be expected to have created the policies and programs and trained their employees on both.


(Next on Part 2 of Bill 168 FAQ Series: FAQs on conducting workplace violence risk assessments)


Cheryl A. Edwards is a former Ontario OHS prosecutor and is now a partner in Heenan Blaikie LLP’s Labour and Employment Group. She is Lead in the firm’s national OHS & Workers’ Compensation Practice Group. Cheryl can be contacted by e-mail at [email protected] or by telephone at (416) 360-2897.

Jeremy Warning is a senior Associate in Heenan Blaikie LLP’s Labour and Employment Group and a member of the firm’s national Occupational Health & Safety & Workers’ Compensation Practice Group. Jeremy may be contacted by e-mail at [email protected] or by telephone at (416) 643-6946.