The new duties apply to any potential acts of violence, threats of violence or harassment in the workplace whether by an employee against a fellow employee or by a member of the public.
Compliance guidelines
The Ministry of Labour has published a compliance guideline entitled “Workplace Violence and Harassment: Understanding the Law”. The guidelines set out the ministry’s position with respect to the proper interpretation of Bill 168 but do not, on their own, have the force of law. However, the guidelines provide a clear indication of the Ministry of Labour’s approach to the legislation.
The release of these guidelines is a welcome development for employers since Bill 168 is quite vague as to the requirement for employers to establish compliance. The guidelines also have limitations, however. Not every question arising out of how Bill 168 will be interpreted and applied by inspectors in the real world is answered. While the guidelines contain sample policies, they do not contain a template for workplace violence and harassment programs. Rather, the ministry provides only an outline of what employers may want to include in their programs.
Therefore, it is up to employers to actually draft their programs and to make sure they include the elements that are required by Bill 168.
New policies and programs
Employers are required to implement policies with respect to workplace violence and harassment. These policies must be reviewed at least annually.
Bill 168 itself says almost nothing about what the content of these workplace violence and harassment policies must be. The guidelines do include sample workplace violence and harassment policies. These sample policies are similar to each other and include statements making clear the employer’s commitment to preventing workplace violence and harassment, and refer to the duties of supervisors and workers. The guidelines also provide that the policies be signed by the highest level of management at the workplace (Bill 168 does not specifically impose this requirement).
The ministry is taking the position in the guidelines that all employers, regardless of size, must have workplace violence and harassment policies. Bill 168 states that employers must have their policies in writing and posted in a conspicuous place, but exempts those employers who regularly employ five or fewer employees. The ministry does not go so far as to say the policies must be in writing, which would be contrary to Bill 168, but as a practical matter it will likely be difficult for employers to establish that they have violence and harassment policies to the satisfaction of a ministry inspector if they are not in writing.
Accordingly, all employers would be well-advised to have policies in writing to avoid potential entanglements with the ministry and prepare written workplace violence and harassment policies. It is recommended that these policies be carefully reviewed to ensure compliance with Bill 168 requirements.
New definitions
The definition of “workplace harassment” in Bill 168 goes beyond the prohibition against harassment currently found in the Ontario Human Rights Code. The Code prohibits harassment based on certain prohibited grounds such as sex, age, race, religion and marital status.
Bill 168 defines “workplace harassment” broadly to mean 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. The conduct need not be directed against an employee based on a specific characteristic that is prohibited by the Code.
This new definition may mean that employers will be faced with more complaints from employees of workplace bullying or poisoned work environments. Such complaints can be very difficult for employers to respond to as there can be a fine line between, for example, a tough management style and perceived harassment.
To minimize the risk of a deluge of harassment complaints, employers should consider training employees on what constitutes harassment. Employers should also consider educating employees, particularly managers and supervisors, on how to avoid behaviour in the workplace that may be considered harassing.
“Workplace violence” is defined as the exercise of physical force against a worker in a workplace that causes or could cause physical injury or an attempt to exercise such force. The definition does not require there to be any intention to exercise such force or to cause injury. This definition could cover accidental application of force that causes or could cause injury.
This definition of workplace violence also covers threats of violence. I suggest that an employer’s policy documents with respect to workplace violence be amended to include the Bill 168 definitions of violence and harassment.
Risk assessment
Employers are required 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 that would be common to similar workplaces, circumstances specific to the workplace and any elements that future regulations may require employers to consider. Beyond that, Bill 168 is vague as to what an assessment must cover.
The employer is required to report the results of the assessment to its joint health and safety committee or a health and safety representative, and to provide a copy of the assessment, if it is in writing, to the committee. Reassessments will need to be conducted “as often as is necessary” to ensure that the workplace violence policy and program continue to protect employees.
The guidelines provide some specific examples of what employers should be looking at when conducting these assessments. The examples include, but are not limited to, considering the layout and location of the workplace, what kind of work is performed, what protective measures are already in place, and past incidents. Particular risk factors to consider include handling cash, transporting goods or people, and working alone.
The guidelines also state that for employers with multiple workplaces, assessments should be done for each workplace, rather than one for all. Reassessments, according to the ministry, should be done if the workplace moves or changes, there is new information on the risks of workplace violence or there is a violent incident.
Development of a program
In addition to requiring employers to have policies to address workplace violence, employers are also required to develop programs to implement the workplace violence and harassment policies.
The program to address workplace violence at a minimum must also include measures and procedures to:
• Control any risks of workplace violence identified in the workplace upon an assessment;
• Summon immediate assistance when workplace violence occurs or is likely to occur, or when a threat is made;
• Report incidents or threats of workplace violence to the employer or supervisor; and
• Set out how the employer will investigate and deal with incidents, complaints or threats of workplace violence.
The program to implement the workplace harassment policy must also include measures for how workers are to report incidents of workplace harassment, and how the employer will investigate and deal with the incidents and complaints of workplace harassment.
Employers are required to provide workers with information and instruction that is appropriate on the contents of the workplace policy and program. Bill 168 does not specify what exactly this instruction must entail.
Domestic violence
Employers are required to take every precaution reasonable in the circumstances to protect an employee if domestic violence would likely expose the worker to physical injury in the workplace.
There is little guidance in the legislation as to how far an employer must go to protect employees if the employer learns of a risk of domestic violence occurring in the workplace. At a minimum, however, employers are expected to alert any security or fellow employees of the risk of a family member entering the workplace, as well as to consider moving the employee, if possible, to a more protected work area. The action required by the new legislation will depend very much on the specific circumstances of each case.
Duty to inform
Employers have a duty to provide employees with information related to a risk of workplace violence from a person with a history of violent behaviour if the employee can be expected to encounter that person in the course of his or her employment, and the risk of workplace violence is likely to expose the employee to physical injury.
The guidelines list factors to be considered by employers when deciding whether or not to disclose information. These include whether the history of violence was associated with work, directed at a particular person, how long ago it occurred, and what procedures are in place to address the risk. The ministry also makes clear that this duty to disclose information does not apply if an employee is not likely to encounter the person in the workplace or there is no risk of injury.
The guidelines also point out that there may be privacy law limitations in regard to what information may be disclosed, but does not provide any guidance on how to address this potentially difficult issue. The reality is that employers are required to draft a formal protocol on when and how disclosure is made to employees, and must also take steps to ensure that privacy rights are expected. In complex cases, it would be prudent to seek legal advice before making a formal disclosure.
Work refusals
Employees now have the right to refuse to perform work in the event of workplace violence or a reasonable risk of workplace violence.
Where an employee asserts a right to refuse work on the basis of workplace violence and the issue cannot be resolved with the employee and his or her joint health and safety committee or union representative, a Ministry of Labour inspector must be called in. The inspector has the power to decide if the employee’s work refusal is valid. Inspectors have broad powers to order employers to take whatever action may be considered necessary to protect worker safety in the event of a worker refusal.
The ministry guidelines make it clear that work can only be refused where the employee believes he or she may be endangered by workplace violence and not for workplace harassment. This is an important point, as many employees may believe that they are able to refuse work and call in a ministry inspector if they believe they are being harassed. If the ministry were to permit work refusals because of alleged harassment, the potential this would have for disruption in Ontario workplaces cannot be overstated.
Employees are not permitted to refuse work where the danger is an inherent or normal part of the job, or if their refusal would endanger another person.
Assessing compliance
Some essential questions to consider when assessing whether your organization is in compliance include:
• Are there specific workplace violence risks in the workplace?
• Are policies and programs sufficiently detailed?
• Is there an investigation protocol in place?
• Are employees and management properly trained?
• Is there a protocol in place to make the tough decisions on issues such as the appropriate responses to incidents, the balancing of employee rights to information against privacy and how to protect employees from the risk of domestic violence?
• Is there an employee trained to address compliance issues with Ministry of Labour inspectors on workplace violence and harassment issues.
Employers who are not in compliance could face orders from Ministry of Labour inspectors to take whatever actions are considered appropriate to achieve compliance.
Failure to be compliant could also potentially expose employers to a risk of charges under the Occupational Health and Safety Act, particularly if an incident of workplace violence occurs that results in serious injury.
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Ryan J. Conlin is a partner at Toronto-based law firm Stringer Brisbin Humphrey Management Lawyers. You may contact Ryan at [email protected] or at 416-862-1616.
