Originally appeared in McMillan’s employment and labour bulletin
Authors: George Waggott, Lai-King Hum
May 2010

By now, most employers are aware of Bill 168, amending the Occupational Health and Safety Act (“OHSA”) to impose new obligations on employers, with limited exceptions, starting June 15, 2010. Some of you have come to us asking if you need to engage external HR service providers to handle the many obligations under Bill 168, as you work to become compliant. Certainly, there are many service providers trumpeting the onerous nature of these obligations and offering their services to assist you.

This bulletin provides you with an understanding of the scope of these new obligations, and how you can address these issues without necessarily engaging external HR service providers unfamiliar with your workplace:

1. Enlarging the scope of workplace health and safety: “Workplace Violence” and “Workplace harassment”

The amendments to the OHSA are aimed at managing the risk of incidents of “workplace violence” and “workplace harassment”. The new definitions for workplace violence and harassment add an additional layer of protection for employees.

Workplace violence now includes not only actual physical violence or the threat of physical violence but also verbal threats that could reasonably be interpreted as threats of physical violence. The current right of workers to refuse to work is extended to include instances where a worker reasonably believes that “workplace violence is likely to endanger himself or herself”.

The new definition for “workplace violence” is:

(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,
(b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
(c) a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

Further, the scope of the OHSA has been expanded to include employer obligations to deal with harassment at the workplace. The inclusion of “workplace harassment” in the OHSA is new, and expands on harassment as defined in the Human Rights Code, which must be rooted in a prohibited ground of discrimination. Aimed at “workplace bullying” and other forms of psychological abuse, if the experience of other jurisdictions with similar harassment provisions is any indication, employers should not fear a curtailment of their ability to manage the performance of their workers. However, employers do need to be aware that a new right to be protected from harassment in the workplace has been created for workers. Until the parameters of “workplace harassment” are defined, there may be a difficult transition period as workers test the limits of that right.

2. Protection from Domestic Violence Crossing over into the Workplace

A further protection from workplace violence is the additional protection from domestic violence crossing over in the workplace. Employers will also be obliged to protect workers from incidents of domestic violence crossing over into the workplace by taking “every precaution reasonable in the circumstances”. The obligation is triggered when the employer either becomes aware of or ought reasonably to be aware of the potential for domestic violence that could cause physical injury in the workplace.

There is no definition for what constitutes “domestic violence.”

3. Obligation to Provide Information v. Privacy Issues

We foresee difficulties arising from the balance between the employer’s obligation to provide information and the employer’s privacy obligations.

The obligation pertains to the obligation on the part of 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 or her work; and
• The risk of workplace violence is likely to expose the worker to physical injury.

The employer is bound to disclose only personal information that is reasonably necessary to protect the worker from physical injury.

Note that this obligation is with respect to workplace violence only, and not workplace harassment.

The difficulties arise with respect to a lack of definition for “history of violent behaviour” and lack of clarity as to what type of information must be provided. There is no requirement that the person identified must have been criminally charged or convicted of “violent” behaviour. However, these difficulties can be managed by clearly explaining to employees what information might be provided and what will be considered a history of violent behaviour.

4. Managing the Risks

We have prepared below a highlight of the steps to be taken to comply with the changes to the OHSA, with some practical guidance tips:

4.1 Risk Assessments of Workplace Violence

The obligation for a risk assessment pertains to workplace violence only. Aimed at determining if your workplace is vulnerable to acts of violence, employers are required to assess the risk against the nature of the workplace, the type of work or the conditions of work, and to consider circumstances common to similar workplaces and the circumstances specific to the workplace.

There is no legal obligation with respect to risk assessment for workplace harassment. We suggest however that including workplace harassment in the risk assessment is a matter of best practice.

There is otherwise no guidance for how such an assessment needs to be done, and no requirement that the results of the assessment be in writing.

Practical guidance:

• Persons familiar with the workplace and its operations, and similar workplaces, should conduct the assessment. Keep a record of how the risk assessment was conducted. As a matter of best practice, the results of the risk assessment should be in writing.
• In conducting the assessment, review past incidents of violence and threatened violence both within your specific workplace and similar workplaces, taking into consideration the work performed and where it is performed. Remember that incidents of violence (or harassment) include not only those involving co-workers but also those involving other persons who may enter into the workplace.
• Consider industry reports regarding workplace violence in similar workplaces.
• Assess the risk of incidents arising from public access to your workplace.
• Assess current protections available: are there emergency security measures in place, such as security guards, discreet security alerts, security protocol and training respecting such protocol? Is there a process in place for incidents arising between co-workers?
• Obtain input from workers: you need not interview each of your employees, but management may not be aware of the potential for violence that employees face. Consider interviewing a cross-section of your employers or conducting voluntary surveys, or have the committee or health and safety representative assist in identifying the potential risks.
• Address the additional measures that might be put into place.

The results of the risk assessment have to be reported back to the joint health and safety committee or to a health and safety representative.

Re-assessments are required as often as is necessary to protect workers from workplace violence. We suggest that engaging the committee, or health and safety representative, or your workers in a dialogue will assist in determining when a re-assessment might be necessary. We recommend that re-assessments be conducted after any incident, as well as annually after your annual policies review.

4.2 Violence and Harassment Policies, Procedures, and Programs

Most of you have likely started the process of both developing written policies and procedures with respect to workplace violence and harassment, or are amending current ones that will take into account Bill 168 obligations, and the requirement to develop programs to implement these policies. You are also likely aware of your posting requirements and obligation to review these policies annually.

Essentially, the changes enlarge the scope of employer’s current obligations to “develop, maintain and post” programs implementing occupation health and safety policies.

Practical guidance with respect to policies:

• Employees must be able to understand these policies. Keep them simple.
• Provide examples of what would be considered a threat of physical violence and an incident of workplace harassment, and what would not. For instance, state that employer management of employee performance through performance improvement plans is not an issue of harassment.
• Provide for disciplinary measures to be taken, including termination for cause, in the event that an employee fails to comply with these policies.

Practical guidance with respect to programs:

• Send the message that both management and employees are responsible for maintaining a safe workplace, and that any kind of violence or harassment is not tolerated.
• The program with respect to workplace violence must incorporate risks identified in the risk assessment, and how you will control those risks, including how immediate assistance will be summoned in the event of an incident or threat of violence.
• The programs for workplace violence and harassment must provide employees with a specific procedure for reporting incidents of workplace violence, including threats of such violence, and workplace harassment, and how the employer will deal with such incidents and complaints. Outline protective measures for employees reporting violence and harassment.
• Include procedures for employee reporting of potential risks for violence or harassment not only where they are personally involved but where a co-worker might be at risk, and detail how you will deal with such risks.
• Create an onus on the part of the joint health and safety committee or the health and safety representative, or where you do not have either, your employees, to report to you new risks of violence in order to assist you in determining if a risk re-assessment is necessary.
• As a matter of best practice and to minimize the risk of exposure to breach of privacy rights, highlight your obligation to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour, and that this might mean you are legally obliged to disclose personal information that would otherwise be protected by privacy laws. Include a list of what information might be provided and what constitutes a “history of violent behaviour”.
• Include procedures that a worker should take when refusing to work because workplace violence is likely to endanger the worker, and how you will deal with ensuring the safety of the worker pending an investigation.

• As part of the implementation, employers are obliged to provide “information and instruction that is appropriate to the worker” on the contents of the policy and program regarding workplace violence and harassment.
• Merely providing the policies to the employees in writing is not sufficient to satisfy the requirement of providing “instruction”. Specific training and information sessions are required. You must provide that information and instruction in the majority language of the workplace. As a matter of best practice, consider the use of other languages if a large number of your employees are not fluent in English, even if they do not form a majority.
• As a matter of best practice, time annual meetings with employees for training and information sessions, grouped in accordance with the work performed and workplace, so they follow the compulsory annual review of the policies.

5. Conclusion

Once your legal obligations are understood, the new obligations implemented by Bill 168 to the OHSA become less daunting. Bill 168 puts the onus on employers to consider issues of workplace violence and harassment, and to put in place measures that will protect workers against those risks. Once these initial measures are in place, it is a simple matter of (a) reviewing the policies and procedures annually in order to ensure that you are up to date, and to provide training and information to employees accordingly; and (b) re-assessing the risk of workplace violence whenever necessary. Compliance is not complicated, once you understand the actual scope of the legal obligations.