The Ontario Ministry of Labour (MOL) has released a set of Health and Safety Guidelines titled “Workplace Violence and Harassment: Understanding the Law – Health and Safety Guidelines” (Guidelines) to assist workers, supervisors and employers in understanding their new obligations under the workplace violence and harassment amendments to the Occupational Health and Safety Act (OHSA), scheduled to come into effect on June 15, 2010. Many organizations are in the process of ensuring that their workplaces will be in compliance with the new laws. If your organization has not started to develop the necessary policies and programs, we strongly recommend that it do so as quickly as possible.
While the Guidelines should not be taken as a statement of the law because they are not binding in the courts, the Guidelines do carry some weight. MOL health and safety inspectors who enforce the OHSA may refer to the Guidelines when determining compliance. The purpose of this communiqué is to highlight some of the more important points covered in the Guidelines.
The Guidelines provide that employers may prepare a separate workplace violence policy or may combine the policy with another policy required by the OHSA such as the workplace harassment policy or general occupational health and safety policy.
The Guidelines make clear that every workplace, regardless of the size or the number of workers, must have workplace violence and harassment policies. These workplace violence and harassment policies should, according to the Guidelines: (i) show an employer’s commitment to protecting workers from workplace violence and harassment; (ii) address violence and workplace harassment from all possible sources (customers, clients, employers, supervisors, workers, strangers and domestic/intimate partners); (iii) outline the roles and responsibilities of the workplace parties in supporting the policies and programs; and (iv) be dated and signed by the highest level of management at the workplace. To assist employers in developing workplace violence and harassment policies, sample workplace violence and harassment policies are included in the Guidelines.
Measures and procedures employers may wish to consider when developing a workplace violence and harassment program are also included in the Guidelines. This includes measures and procedures: to control the risks of workplace violence identified in the risk assessment (i.e. adequate lighting); for summoning immediate assistance (i.e. fixed or personal alarms); for workers to report incidents of workplace violence to their employers or supervisors (i.e. how, when and to whom a worker should report incidents or threats); and how employers will investigate and deal with incidents or complaints of workplace violence (i.e. recordkeeping requirements).
Under the new law, employers will be required to assess the risk of workplace violence that may arise from the nature of the workplace, type of work or conditions of work. The Guidelines explain that the “nature of the workplace” refers to the physical aspects of the workplace, whether it is a building, construction site, vehicle or forest (i.e. lines of sight). The “type of work” refers to the activities workers perform (i.e. working with unstable or volatile people), the sector of work (i.e. health care) and people with whom workers interact (i.e. patients). The “conditions of work” refers to other aspects (i.e. whether workers work with others or in isolation). The Guidelines outline the sectors where the risk of violence may be higher (i.e. retail) and identify the types of activities or circumstances that may increase the risk of workplace violence (i.e. handling cash).
Where multiple workplaces exist within an employer’s organization, the Guidelines state that each location should be assessed for its own unique risks of workplace violence (i.e. layout and design of the workplace) in addition to the common risks. The Guidelines set out circumstances where it is advisable that a re-assessment of the risks of workplace violence should be undertaken (i.e. where the workplace moves or the existing workplace is renovated or reconfigured). While the OHSA requires employers to assess the risk of workplace violence, the Guidelines state that the OHSA does not require employers to assess the risk of workplace harassment.
In terms of what information and instruction on workplace violence and harassment employers must provide, the Guidelines set out various types of important information that workers should know (i.e. how to summon immediate assistance). The Guidelines state that the duty to provide workers with information related to a risk of workplace violence from a person with a history of violent behaviour only applies when the: (a) worker can be expected to encounter the violent person in the course of his or her work; and the (b) risk of workplace violence is likely to expose the worker to physical injury. The Guidelines offer a list of factors to consider in determining what is likely to expose a worker to physical injury while in the course of work (i.e. was the history of violence associated with the workplace or work?).
The difficulty lies in determining how much information employers and supervisors must disclose to workers in order to comply with this duty. On this point, the Guidelines simply state that employers and supervisors must disclose as much information about a person with a history of violent behaviour as needed to protect workers from physical injury while respecting privacy as much as possible. By way of example, the Guidelines suggest that the information disclosed should allow workers to identify the person with the history of violent behaviour and, if possible, the triggers of his or her potential aggression.
The Guidelines identify a number of statutes governing the release of personal and/or medical information and caution that employers and supervisors must take these statutes into account while complying with their duty to disclose information about persons with a history of violent behaviour under the OHSA (i.e. Personal Health Information Protection Act). However, the Guidelines state that the amendments to the OHSA do not require employers or supervisors to perform criminal background checks or to otherwise seek out information on workers or other people who are likely to be in the workplace.
The Guidelines suggest that employers must deal with domestic violence in the workplace on a case-by-case basis which could involve creating an individual safety plan for the worker while he or she is in the workplace, developed in consultation with the targeted worker. Furthermore, the Guidelines state that even if a worker does not want any steps taken, employers may still be required to take some action to protect the targeted worker and other workers, depending on the circumstances.
The Guidelines note that while a worker can refuse to work if he or she has reason to believe he or she may be endangered by workplace violence, work cannot be refused on the grounds of workplace harassment. For some workers, the right to refuse work for any reason is limited. Certain workers who protect public safety (i.e. police) cannot refuse work if: (i) the danger is an inherent or normal part of their job; or (ii) the refusal would endanger the life, health or safety of another person. Since a worker must remain in a safe place as near as reasonably possible to his or her workstation while waiting for the employer to investigate the work refusal, employers may wish to designate where a safe place would be.
When an incident of workplace violence occurs, the Guidelines state that employers should first notify police and/or emergency responders for immediate assistance. In addition, the Guidelines state that various other duties exist for employers under the OHSA if an incident of workplace violence results in a person being killed or critically injured or if a worker is disabled or requires medical attention (i.e. notify a MOL inspector).
The Guidelines state that it is not the role of MOL inspectors to resolve or mediate specific allegations of workplace harassment, but rather these allegations ought first to be investigated and dealt with internally by employers, failing which workers may seek external resolution through recourse to the Human Rights Tribunal of Ontario, grievance arbitration or civil litigation.
If you would like to learn more about the new workplace violence and harassment requirements, we encourage you to speak to your regular Miller Thomson LLP contact to find out how we can assist.