March 15, 2010
Protect against workplace violence and harassment
By Robert Kennaley
McLauchlin & Associates
The Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, comes into effect on June 15, 2010. This legislation imposes a whole new set of obligations on employers, with respect to violence and harassment in the workplace. The Act has also been amended to provide a right to refuse work, where workplace violence is likely to endanger the worker. As is the case with all OHSA obligations, employers should take care to ensure that they both follow the Act’s new requirements, and document compliance in that regard.
Previously, under the Human Rights Code, employees were entitled to be free from harassment from employers, agents of the employer, and from other employees because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability. Under the changes to the OSHA, however, employers are required to guard against all harassment, which meets the broad definition, regardless of its basis or source.
The new provisions of the Act require employers to perform an assessment of the risk that workplace violence might arise in the workplace. Specifically, the Act requires that the assessment consider the nature of the workplace and the type and conditions of the work in question, as well as circumstances specific to the workplace and common to similar workplaces. Further requirements can be established by regulations passed under the Act.
The results of the assessment must be reported to the applicable health and safety committee, or representative, or where there is no committee or representative, to the workers themselves.
While the assessment(s) need not be in writing, it is suggested that some record of the assessment(s) should be kept, in order to show compliance with the statutory obligation, if necessary.
Employers will also be required to develop programs to implement the policies and to inform and instruct employees about the programs and their implementation. The programs must include mechanisms for employees to report incidents or threats of workplace violence or harassment, and must detail how incidents, complaints or threats of workplace violence or harassment will be investigated and dealt with. The programs must also provide for how employees may summon immediate assistance where workplace violence occurs, or is likely to occur, or when a threat of workplace violence is made.
In that regard, if a worker can be expected to encounter a person with a history of violent behaviour in the course of his or her work, and that risk is likely to expose the worker to physical injury, the Act requires the employer and supervisor (if applicable) to provide the at-risk worker with information about the risk, including personal information about the potentially violent individual. No employer or supervisor, however, is to disclose “more personal information than is reasonably necessary to protect the worker from physical injury.”
Although little guidance has been offered in relation to how the potential for domestic violence is to be addressed, it does not appear at this point that employers must ask employees whether or not anyone in their private lives has a propensity for violence. Where the employer, however, becomes aware that violence associated with a domestic situation could enter the workplace, the employer and supervisor must take steps to protect all workers from the potential violence. This can include revealing the nature of the risk and, also the identity of the person of concern. No guidance, however, is provided with respect to how a person’s rights of privacy are to be balanced against the need to protect workers.
Robert Kennaley practices construction law in Toronto and Simcoe. He speaks and writes regularly across North America. He can be reached for comment at 416- 368-2522, or at kennaley@mclauchlin.ca. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.
McLauchlin & Associates
The Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, comes into effect on June 15, 2010. This legislation imposes a whole new set of obligations on employers, with respect to violence and harassment in the workplace. The Act has also been amended to provide a right to refuse work, where workplace violence is likely to endanger the worker. As is the case with all OHSA obligations, employers should take care to ensure that they both follow the Act’s new requirements, and document compliance in that regard.Harassment
Under the new legislation, “workplace harassment” is broadly defined to include, “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.” Importantly, the definition extends beyond the scope of harassment already precluded under the Human Rights Code.Previously, under the Human Rights Code, employees were entitled to be free from harassment from employers, agents of the employer, and from other employees because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability. Under the changes to the OSHA, however, employers are required to guard against all harassment, which meets the broad definition, regardless of its basis or source.
Workplace violence
Under the new legislation, workplace violence means the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, or an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.The new provisions of the Act require employers to perform an assessment of the risk that workplace violence might arise in the workplace. Specifically, the Act requires that the assessment consider the nature of the workplace and the type and conditions of the work in question, as well as circumstances specific to the workplace and common to similar workplaces. Further requirements can be established by regulations passed under the Act.
The results of the assessment must be reported to the applicable health and safety committee, or representative, or where there is no committee or representative, to the workers themselves.
While the assessment(s) need not be in writing, it is suggested that some record of the assessment(s) should be kept, in order to show compliance with the statutory obligation, if necessary.
Policies and programs
The new legislation requires employers to prepare written policies with respect to workplace violence and harassment, and to review those policies at least annually. The written policies are to be posted in a conspicuous place in the workplace, except where the number of employees regularly employed at the workplace is less than six (unless an inspector orders otherwise).Employers will also be required to develop programs to implement the policies and to inform and instruct employees about the programs and their implementation. The programs must include mechanisms for employees to report incidents or threats of workplace violence or harassment, and must detail how incidents, complaints or threats of workplace violence or harassment will be investigated and dealt with. The programs must also provide for how employees may summon immediate assistance where workplace violence occurs, or is likely to occur, or when a threat of workplace violence is made.
Domestic violence
The new legislation’s provisions in relation to ‘domestic violence’ have, particularly, given rise to some confusion and criticism. First, although domestic violence is not defined, the Act now puts obligations on any employer who becomes (or reasonably ought to become) aware that domestic violence, which would likely expose a worker to physical injury, might occur in the workplace. In such a circumstance, the employer is required to “take every precaution reasonable in the circumstances for the protection of the worker.”In that regard, if a worker can be expected to encounter a person with a history of violent behaviour in the course of his or her work, and that risk is likely to expose the worker to physical injury, the Act requires the employer and supervisor (if applicable) to provide the at-risk worker with information about the risk, including personal information about the potentially violent individual. No employer or supervisor, however, is to disclose “more personal information than is reasonably necessary to protect the worker from physical injury.”
Although little guidance has been offered in relation to how the potential for domestic violence is to be addressed, it does not appear at this point that employers must ask employees whether or not anyone in their private lives has a propensity for violence. Where the employer, however, becomes aware that violence associated with a domestic situation could enter the workplace, the employer and supervisor must take steps to protect all workers from the potential violence. This can include revealing the nature of the risk and, also the identity of the person of concern. No guidance, however, is provided with respect to how a person’s rights of privacy are to be balanced against the need to protect workers.
Concluding comments
Again, employers should take care to ensure that they meet the Act’s new requirements, and document their compliance in that regard. Toward this, employers are encouraged to take advantage of the many resources that are available to assist them to develop occupational health and safety policies and programs, including those offered by and through Landscape Ontario. With respect to domestic violence in particular, and given the tightrope that must apparently be walked between warning employees and not revealing more personal information than is reasonably necessary in the circumstances, employers should consider obtaining legal advice, if time allows, before revealing personal information about an employee, or his or her domestic situation.Robert Kennaley practices construction law in Toronto and Simcoe. He speaks and writes regularly across North America. He can be reached for comment at 416- 368-2522, or at kennaley@mclauchlin.ca. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.