There are at least five important questions every in-house counsel with responsibilities in Ontario needs to answer with respect to legal compliance with Bill 168 — amendments to Ontario’s Occupational Health and Safety Act, becoming law June 15, 2010.
• Has the organization done a written risk assessment for violence in the workplace?
• Has the organization done a policy prohibiting workplace violence and harassment?
• Has the organization prepared a program, prepared as a result of the risk assessment, responsive to the specific needs of the workplace?
• Has the organization trained management and workers with respect to the organization’s violence prevention program?
• Has the organization established an internal complaint procedure and investigation process?
The amendments require every employer regularly employing five or more workers to develop and post a policy addressing workplace violence and harassment.
The employer must also develop a program to implement that policy. It must include measures to control risk of workplace violence and harassment, emergency response procedures, reporting procedures to be followed by workers, and procedures for the investigation of incidents and worker complaints.
Under the changes, a Ministry of Labour inspector can also order an employer with five or less regularly employed workers to develop a policy and program respecting workplace violence and harassment.
Once all contributing factors are identified, the employer is obligated to assess the potential for violence at its workplace and implement appropriate controls to prevent and manage such risk.
The risk assessment must consider conditions of work at the employer’s workplace and those common to similar workplaces. The employer must share the results of the risk assessment with its joint health and safety committee or the workplace health and safety representative.
As with other serious incidents, the proposed amendments require the employer to notify the Ministry of Labour of an incident of violence as per s. 52 of the act.
Bill 168 also amends the work refusal provisions of the act to include workplace violence.
The existing process would apply with the exception that the endangered employee is required to stay only “as near as reasonably possible” to his or her work station.
The proposed changes do not alter the limitation on essential public sector employees, such as firefighters and police officers, to refuse unsafe work that is inherent to their profession.
Bill 168 places a duty on employers to take every reasonable precaution for the protection of a worker if the employer knows or ought to reasonably know there is a likelihood the safety of the worker may be endangered at the workplace by an act of domestic violence.
No other Canadian legislation has placed such a duty on employers to deal with domestic violence in the workplace. Although the language used for the domestic violence amendment under Bill 168 implies an objective standard, it is difficult to understand how employers will be able to prevent domestic violence from spilling over into the workplace. At minimum, the domestic violence provisions of Bill 168 create potential liability for employers while having questionable benefits for the prevention of domestic violence.
Bill 168 also puts employers in the awkward position of communicating to workers personal information of individuals with a history of violent behaviour.
The bill requires that employers not disclose more information than is reasonably necessary to protect the worker from physical injury. However, it is not clear how the information, in and of itself, will protect the worker.
In health-care or psychiatric workplaces, the status of a violent patient or client is generally addressed by internal policies and procedures. It is not clear the legislation is needed for those types of workplaces.
Statutory exemptions of the Personal Health Information Protection Act may have been sufficient, rather than amending the OHSA which potentially creates liability for employers.
If the source of the risk of violence is a co-worker, there are serious questions about the ability of employers to contain information about the violent history of a co-worker once it has been revealed to others who work in close proximity.
There are further legal concerns about the application of the Ontario Human Rights Code. For example, if an employer is aware that an employee has a criminal conviction for which they have been granted a pardon, are they still required to communicate the past criminal history to co-workers who work closely with that individual?
Perhaps the most disturbing aspect of the domestic violence and disclosure of information with violent histories is after a serious incident occurs, employers are often blamed, with the benefit of hindsight, by the Ministry of Labour for not doing enough.
There is no good-faith exemption for employers in Bill 168. In other words, no matter how well-advised and well-intentioned employers are, if their view of their duties with respect to these problematic issues differs from that of the Ministry of Labour, they are at risk of receiving orders, or worse, being prosecuted by the ministry after an incident of violence occurs at the workplace.
The object of Bill 168 is not to prosecute employers and impose substantial fines, but rather to reduce the risk of violence in the workplace. Therefore, positive incentives could be a more appropriate approach than merely the threat of prosecution, which looms when provincial inspectors investigate workplace incidents, including those relating to workplace violence.
With the recent conviction and $70,000 fine at the Centre for Addiction and Mental Health relating to an alleged failure to prevent workplace violence before Bill 168 has been passed into law, one can only speculate that this proposed legislation will result in even further aggressive enforcement through orders and prosecution by the ministry.
Bill 168 is a substantial, if not radical, change to employers’ responsibilities under the OHSA to prevent and manage workplace violence and harassment.
The special responsibility and relationship in-house counsel have with respect to their corporate employer obligations under the OHSA makes it imperative for them to ensure legal compliance with Bill 168.
The risk assessment required by law is a critical starting point that in-house counsel must ensure has taken place prior to June 15, 2010.
Whether an outside provider completes the risk assessment or it is done internally, it is imperative it be specific to the workplace circumstances and risks that exist, and not some generic template that may apply loosely to some employers.
Finally, the development of the workplace violence and harassment policy, program, training, and investigating procedure will naturally flow from the risk assessment.
The five questions need to be answered, in the affirmative, by June 15 and should be monitored by in-house counsel.
Norm Keith is a partner in Gowling Lafleur Henderson LLP’s Toronto office and leader of the firm’s national occupational health and safety group.