Ontario Proposes New Workplace Violence Requirements

All employers in Canada have a duty to prevent and protect workers from violence. The OHS laws impose this obligation in one of two ways. In seven jurisdictions—Fed, AB, BC, MB, NS, PEI and SK—the OHS laws specifically say employers must take steps to address workplace violence. (Québec requires employers to prevent “workplace psychological harassment,” including physical violence.) In the remaining jurisdictions, this duty is implied by the OHS law’s “general duty clause.” Ontario currently falls in the latter group—but its status is likely to change soon. The government recently introduced a bill that would add new language to the OHS Act requiring employers to take specific steps to prevent workplace violence and harassment. Here’s a look at Bill 168 (To download a copy of the bill, see www.ontla.on.ca/bills/bills-files/39_Parliament/Session1/b168.pdf).

THE BILL

Who It Applies to: Bill 168, which was introduced in the Assembly on April 20, 2009, applies to all employers in Ontario covered by the OHS Act. Key Components: In addition to defining “workplace violence” and “workplace harassment,” the Bill has seven key components: 1. Policies. Employers must prepare policies on workplace violence and harassment and review those policies at least annually. If an employer has five or more workers, the policies and must be in writing and posted conspicuously in the workplace. 2. Risk assessment. Employers must conduct an assessment of the risk of workplace violence and report the findings to the JHSC, safety representative or the workers (if there’s no JHSC or safety representative). 3. Violence program. Employers must develop a program to implement the workplace violence policy. That program must include measures:

• To controls risks of workplace violence identified in the assessment;
• To summon immediate assistance when workplace violence occurs;
• For workers to report incidents or threats of workplace violence; and
• For employer to deal with incidents, complaints and threats of workplace violence.

4. Domestic violence. If an employer is aware or ought to be aware that domestic violence that’s likely to physically injure a worker may occur in the workplace, the employer must take every reasonable precaution to protect the worker. 5. Duties. The Bill clarifies the duties of employers, supervisors and workers with respect to workplace violence and requires employers to train workers on the workplace violence policy and program. 6. Harassment program. Employers must develop a program to implement the workplace harassment policy. That program must include measures for workers to report incidents of workplace harassment and spell out how the employer will deal with incidents and complaints of workplace harassment. In addition, the employer must train workers on the workplace harassment policy and program. 7. Right to refuse. The Bill would extend the worker’s right to refuse dangerous work to include the right to refuse work if workplace violence is likely to endanger a worker.

ANALYSIS

Given the high priority that workplace violence and prevention is attracting across Canada in general and in Ontario specifically, Ontario employers should expect Bill 168 to become law sometime this year. The elements of the violence and harassment prevention programs required by the Bill are similar to the requirements in most Canadian jurisdictions that impose specific violence and harassment duties on employers. There are two notable exceptions, however. First, Bill 168 specifically extends workers’ right to refuse dangerous work to include refusals based on the risk of workplace violence. It’s likely that workers in other jurisdictions also have such a right. But in those jurisdictions, the right is implied by the general refusal right and not spelled out. If and when the Bill is passed, Ontario workers will very clearly have the right to refuse work where the risk of workplace violence is likely to endanger them. Second, Bill 168’s domestic violence duty is unique in Canada. This language appears to be a response to the murder of nurse Lori Dupont by her ex-boyfriend, a doctor at the hospital where she worked, in November 2005. Her killer later committed suicide. Senior hospital administrators knew about the ex-boyfriend’s unstable behaviour and that he’d made threats to Dupont. But on the day she was murdered, the nurse and doctor were scheduled to work together. If the Bill is passed, employers in Ontario will no longer be able to turn a blind eye to domestic violence, at least to the extent that they can protect workers from such violence in the workplace.