New Workplace Rules

June 2010

Ontario’s legal regime governing workplace violence and harassment is changing, and it is important for employers to prepare themselves for the new landscape. The changes come by way of Bill 168, which received Royal Assent on December 15, 2009. This Bill amends the Occupational Health and Safety Act (“OHSA”) by defining workplace violence and harassment, allowing employees to refuse work where violence may potentially occur and requiring employers to establish policies to reduce violence and harassment in the workplace. The amendments will take effect June 15, 2010.

Definitions

Bill 168 defines “workplace harassment” as “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.” This definition is broader than that of discrimination under human rights legislation, and the harassment does not need to be based on traditional prohibited grounds of discrimination such as gender or race.

“Workplace violence” will be defined to include:

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; or

c. a statement or behaviour that it is reasonable for a worker to interpret as a threat of physical force against the worker, in a workplace, that could cause injury to the worker.

These definitions do not require that the conduct come from a fellow employee. This is particularly important where employees are exposed to potential violence or harassment from customers, suppliers, patients, clients or the general public.

Right to Refuse Unsafe Work

A significant change made by Bill 168 is that workers may refuse work where they have reason to believe that they are in danger of being a victim of workplace violence (though the same right does not exist for workplace harassment). A refusal of this nature would then trigger the traditional work refusal investigation process under section 43 of the OHSA.

New Obligations on Employers

Bill 168 also places important obligations on employers. These include:

1. Written workplace violence and harassment policies, and accompanied training, will now be required of all employers with more than five employees. These policies must be provided to employees and reviewed annually.

2. Workplace assessments must be carried out to assess the risk that violence may occur, with reassessments of risks as often as necessary. These findings must be reported to any health and safety committee or representative.

3. Employers must also develop programs to implement these policies. These programs must include:

• programs to control identified risks;
• measures to report incidents of violence and harassment;
• policies requiring employees to call for immediate assistance if workplace violence occurs; and
• establishment of an employer investigation process.

4. Employers are now required to take every reasonable precaution to address issues of domestic violence in the workplace. The impact of this novel concept is unclear, and appropriate practices may be ambiguous. Employers should, at the very least, be cognizant of issues of domestic violence in the workplace.

5. Employers now have an obligation to disclose information about a person with a history of violent behaviour, where it is likely that a worker will be exposed to the person through the course of their work and that exposure creates a risk of physical injury.

Strategies for Employers

We recommend the following steps be taken by Ontario employers:

1. Assess your workplace: Begin scheduling regular risk assessments of your workplace and provide copies of the results to your health and safety committee or representatives. This assessment should also cover identification of persons with a history of violent behaviour.

2. Review your policies: Employer policies will have to be updated to ensure they meet the new requirements. These should include policies on how to report workplace violence and harassment, calling for immediate assistance if workplace violence occurs, and establishing an investigation process.

3. Develop training programs on the prevention of workplace harassment and violence: These will need to cover assessment of issues, reporting requirements, and the assistance which we be available.

4. Communicate these changes to your employees: A key component of implementing and administering appropriate policies will be ongoing communication with employees.

George Waggott is a partner in the Employment & Labour Law Group in Toronto. Contact him directly at 416-307-4221 or gwaggott@langmichener.ca.

Ed.: In the preparation of this article, George wishes to acknowledge the assistance of Josiah MacQuarrie, Student-at-Law.

This article appeared in the Lang Michener LLP InBrief Summer 2010. To subscribe to this publication, please visit our publications request page.