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Introduction:
Amendments to the Occupational Health and Safety Act (“OHSA” or the “Act”) require employers to prepare detailed policies and thorough implementation plans to address workplace violence and workplace harassment. The obligations imposed upon employers by Bill 168, which comes into force on June 15, 2010, are onerous, the legal consequences for any perceived failing by employers are potentially severe.
These changes apply to all employers operating in Ontario with five or more employees. Pursuant to Section 32.0.1 of the OHSA, the obligation to prepare policies regarding workplace violence, harassment, and to review these policies, can also be applied to small employers if “an inspector orders”. The basis for such an order is not defined in the Act, thus seemingly left to the whim of the individual inspector, perhaps if he or she is frustrated or having a bad day.
Relevant Sections of the Amendments Pertaining to Violence & Harassment:
Key definitions (from definitions in the Act, section 1):
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;
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,
(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 it 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.
Thus, workplace violence is defined quite broadly, especially given clause C above. This would appear to allow any worker to subjectively, rather than objectively, perceive a threat of physical force that could cause injury. It begs the question of what would be “reasonable”, on a subjective basis, for the worker to perceive as a threat, and whose judgment will prevail?
The definition of “harassment” in the OHSA is also very broad. It is similar to the subjective definition of harassment in the Human Rights Code, however it is not limited to harassment in the workplace on the various prohibited and specifically listed grounds (age, sex, sexual orientation, ethnic origin, colour, creed, etc.) in the Code. Thus, the OSHA appears to offer more open-ended protection to a worker against what that worker perceives as harassing behaviour than does the Code.
Employers’ Obligations:
Section 32.0.1 of the OHSA obliges employers to:
“(a) prepare a policy with respect to workplace violence;
- prepare a policy with respect to workplace harassment, and,
- review the policies as often as is necessary, but at least annually”.
Workplace Violence:
Section 32.0.3 obliges employers to “assess the risks 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 common to similar workplaces, and those specific to the particular workplace, as well as later factors that the government will prescribe by regulation.
Section 32.0.3 (4) provides that the risks of the workplace shall be reassessed “as often as is necessary to ensure that the related policy…and the related program…continue to protect workers from workplace violence.”
The risk assessments for workplace violence per section 32.0.3 (4) must be in writing. Once these assessments, or reassessments as the case may be, are done, these are to be provided to the Health and Safety Committee or to the workers directly.
Section 32.0.2 requires employers to “develop and maintain a program to implement the policy with respect to workplace violence…”. This section provides that the implementation program shall at least include the following:
“(a) measures and procedures to control the risks identified in the assessment required under sub-section 32.0.3 (1) as likely to expose a worker to physical injury;
- measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;
- measures and procedures for workers to report incidents of workplaceviolence to the employer or supervisor;
- how the employer will investigate and deal with incidents or complaints of workplace violence”.
This Section also allows for any further elements that will be prescribed by subsequent regulation. Employers are obliged to train their workers to ensure they understand and can comply with these various “measures and procedures”. The policies must be in writing and posted if there are more than five employees.
Section 32.0.5 (3) provides that an employer’s duty to provide information “include the duty to provide information, including personal information related to a risk of workplace violence from a person with a history of violent behaviour if:
- (a) the worker can be expected to encounter that person in the course of his or her work; and,
- (b) the risk of workplace violence is likely to expose the worker to physical injury.”
Thus, if employers know of an individual, who could be perhaps another worker, a supervisor, or a customer, with a history of violent behaviour, the employer must warn others about that individual if the above two pre-conditions exist. But, employers must take care, conversely, not to disclose more information “than is reasonably necessary to protect the worker from physical injury.” What, precisely, is “reasonably necessary” remains undefined.
These duties to assess the risks of violence and to protect apply to all employers caught by the Act. Yet, I submit that they are particularly relevant for employers whose employees have regular contact with the public, for example, restaurants, bars, and indeed any business where “front-line” workers are indeed the “front-line” customer contact point.
Additionally, the above-noted disclosure obligation places employers between the proverbial rock and hard place. On the one hand employers must warn but, on the other, must apparently not over-react. There is much potential for the role of “Monday Morning Quarterbacks” in what will likely be the after-the-fact application of these sections of the Act.
Domestic Violence Singled Out:
Domestic violence is singled out in Section 32.0.4 of the OHSA, which states as follows:
“If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.”
Discussion:
There have been over the years tragic and traumatic incidents of workplace violence of which we are all aware. Indeed, the term “going postal” is all too well understood. Thus, employers should take all reasonable measures to guard against workplace violence as are appropriate and necessary in the particular environment in which the employer operates. But the breadth of these legislative amendments is sweeping. As well, these changes are often vague and non-specific. It is not always clear exactly what the government expects employers to actually do, other than “do something”. A whirl of well intentioned activity is deemed better than a well-thought through, and perhaps more limited in scope, plan to address the problem. The vagueness of some requirements thus leaves employers who act reasonably, without the benefit of the proverbial crystal ball, likely exposed and vulnerable to prosecution.
For example, the obligation to reassess the policy and program implemented by employers “as often as is necessary” could leave an employer vulnerable to prosecution if an incident occurs notwithstanding the employer implemented a policy, and even if the policy had been reviewed in the last year. After all, if a policy is in place, along with an implementation plan, and this was reviewed, for example, ten months prior to an incident of violence occurring in the workplace, would an inspector be able to resist initiating a prosecution under the Act, even if such would only be for the purposes of “making an example of the employer” or “over-charging”?
The singling out of domestic violence, moreover, opens a Pandora’s Box worth of issues, including the right of employees to have a private life. The section pertaining to domestic violence unnecessarily pits the social good of the right to privacy against the equally important premise of maintaining a safe workplace. The presumed obligation and assumption that an employer ought to “reasonably be aware” of the potential for domestic violence seems to oblige employers to inquire into private lives of employees. This is quite different than if an employee informs his or her supervisor or employer that a marital separation could lead the employee to be exposed to possible violence. In those circumstances, of course, an employer must indeed take steps to ameliorate the risk.
If an employee does not chose to disclose personal information, however, should an employer presume that the ending of a marriage—even assuming that the employer knows about such a private matter—is likely or even possibly to lead to workplace violence? Based on such a presumption, must an employer then take redundant and expensive steps to ensure the personal safety of the employed spouse? After all, approximately half of all marriages end in divorce. Must an employer act pro-actively every time it learns that one of its employees is undergoing a marital separation, given the employer under the Act “ought reasonably to be aware” that domestic violence might occur?
Where should the line be drawn? How much effort is too much or excessive, especially considering the resulting “Monday morning quarterback” scenario that will arise in the event of any actual violence, no matter how unlikely the risk was of such violence occurring?
Workplace Harassment—often the refuge of the recalcitrant employee:
In addition to the policy and implementation plan addressing workplace violence, employers are also obliged to prepare a policy addressing workplace harassment. Section 32.0.6 further obliges an employer to develop and maintain a program to implement the policy with respect to workplace harassment. The implementation program must:
(a) include measures and procedures for workers to report incidents of
workplace harassment to the employer or supervisor;
- set out how the employer will investigate and deal with incidents and
complaints of workplace harassment, and also include any elements later prescribed by regulation.
Consistent with the workplace violence policy, this policy and implementation program must also be reviewed at least annually, and more often if circumstances warrant.
Employers should train all supervisors on the topic of workplace harassment. Such training should emphasize what constitutes “harassment” pursuant to the definition from the Act set out above, as contrasted with reasonable and appropriate supervision and workplace discipline. This is especially the case because, at times, accusations of workplace harassment can be levied in retaliation for supervisor-criticism perceived to be unfair.
This underscores the need for all supervisors and managers to keep careful notes of meetings with subordinates and to be able to objectively justify any work-related criticism or discipline. Supervisors must be trained in how to conduct performance appraisals, and how to pro-actively address and respond to employees who are not performing to the expected and accepted level. Employer policies must oblige supervisors and indeed all employees to act professionally and respectfully toward subordinates and workplace colleagues at all times. Under these anti-harassment provisions in the Act, the “office bully” can no longer be tolerated or excused, as the bully may cost his/her employer dearly.
In addition to conflict with supervisors, workplace harassment can arise between co-workers based upon inappropriate conduct of an infinite variety. It is in the interest of employers to ensure that their “corporate culture” is, and is objectively seen to be, one of respect, where bullies are nipped in the bud before inappropriate workplace behaviour of any sort can become an expensive liability for the employer. A clear policy on harassment also may help insulate an employer from liability if an employee or supervisor “goes rogue” and acts contrary to established policy and expectations.
Work Refusals:
The Act currently allows workers the right to refuse unsafe work, which refusal would lead to the existing investigation procedures in the Act. If a worker believes that there is a risk of workplace violence, the worker may refuse to work, thus initiating the employer’s duty to investigate the refusal, just as any other workplace refusal must be investigated.
Policy Planning, Review, Implementation:
Some employers have workplace policies that might address these new legislated requirements. Before assuming that this is the case, such policies should be reviewed with care in light of these sweeping changes. In the main, a detailed risk assessment of the exposures of your workers needs to be conducted. Any existing policies should be considered in light of that assessment. All Ontario employers with over five employees need a workplace violence policy with an implementation plan, plus a workplace harassment policy with an implementation plan. The implementation plans should, at a minimum, meet the standards set out in the OHSA. The policy and implementation plan must also be communicated to all employees. Complaint, disclosure, and reporting procedures all must comply with these new (along with all existing) provisions.
Employers need a reminder system to trigger a review of these policies and implementation plans at least annually. If circumstances change in the workplace, such changes must be assessed as to whether the policies or implementation programs need updating due to any workplace changes. For example, if a business in an area previously inaccessible to the public moves to a store-front or ground floor location open to the public, I would suggest this constitutes a change that triggers a review of the applicable policies and implementation programs.
To ensure that employers meet their obligations with respect to “domestic violence” as discussed in Section 32.0.4 of the OHSA, a policy on workplace violence could specifically oblige employees to communicate to their supervisor or the human resources department if they believe that they could be even a potential target of domestic violence in the workplace. Employers should also consider outside service providers who offer Employee Assistance Programs (“EAP”). Such service providers, usually trained social workers, can guide employees to take appropriate steps, including seeking protection from an abusive spouse.
What constitutes the “workplace”?
It is important to keep in mind that the “workplace” is, of course, not always confined to an office or industrial environment. For those employees who are route salespeople, or who work outdoors, or with the public, their “workplace” is more elastic than is the typical office environment. The employer’s obligation to guard against domestic, indeed any, violence in those circumstances is thus different from and more onerous than is the obligation in the more typical office environment. Despite the difficulty, protecting workers who work from small satellite offices, or who are on the road, work outdoors, or even those who work from home from the risk of domestic or any physical violence, is now a legislated obligation of employers.
Posting:
The policies on workplace violence and harassment must be posted “at a conspicuous place in the workplace”, as Section 32.0.1(2) requires.
Time for employer Action—the clock is ticking:
Please contact Ricketts, Harris if you wish to discuss the preparation and/or the implementation of policies on workplace violence, harassment, or the specific training of supervisors to enable you to hopefully avoid these or other lurking HR and legislated “mine-fields”.
The amendments to the OHSA take effect June 15, 2010, six months after Bill 168 was given Royal Assent on December 15, 2009. Thus, the clock is ticking for employers to ensure that they are in compliance with these new obligations in the OHSA.
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