Health and Safety Legislative and Regulatory Responses

by Daniel Pugen
McCarthy Tetrault

Workplace violence has become a hot topic among labor, employment, and health and safety regulators in Canada. Of course, workplace violence is hardly a new phenomenon. Certain workers like police officers have an inherent risk of workplace violence. Also, put enough people in an enclosed area under stressful conditions (i.e., the typical office scenario) and some form of conflict is bound to result.

Whether it’s actual physical aggression or other forms of workplace violence like threats or harassment, some research suggests that such conduct is on the rise.

Some stats
The statistics on workplace violence are revealing.

The Canadian Initiative on Workplace Violence found that 66 percent of employers surveyed reported an increase in aggressive acts in their workplace over the past five years. On February 16, 2007, Statistics Canada released a report titled Criminal Victimization in the Workplace. Some of the findings:

• Nearly one-fifth of all physical and sexual assaults in Canada in 2004 happened in the workplace.
• Of the 356 violent incidents that occurred in Canadian workplaces in 2004, 71 percent were physical assaults.

These statistics, and various high-profile incidents at Canadian and U.S. universities and workplaces, have prompted legislators and regulators to take action. In Canada, the result has been:

• imposing duties and liabilities regarding workplace violence on employers under health and safety legislation; and
• requiring employers to implement standards and practices to reduce the risk of workplace violence.

What is workplace violence?
Workplace violence is not limited to acts of physical aggression. The Canadian Centre for Occupational Health and Safety defines workplace violence as:

• Threatening behavior – such as shaking fists, destroying property, or throwing objects.
• Verbal or written threats – any expression of intent to inflict harm.
• Harassment – any behavior that demeans, embarrasses, humiliates, annoys, alarms, or verbally abuses a person and that is known or would be expected to be unwelcome. This includes words, gestures, intimidation, bullying, or other inappropriate activities.
• Verbal abuse – swearing, insults, or condescending language.
• Physical attacks – hitting, shoving, pushing, or kicking.

The Ontario Ministry of Labour has defined workplace violence as “the attempted or actual exercise of any intentional physical force that causes or may cause physical injury to a worker. It also includes any threats that give a worker reasonable grounds to believer he or she is at risk of physical injury.”

Workplace violence may occur within a traditional workplace or off-site at conferences, work-related social events, or even at a home office via telephone or e-mail.

Regulation of workplace violence
Federal and provincial occupational safety legislation, like the U.S. Occupational Safety and Health Act, contain general prohibitions to ensure that the workplace is safe. These prohibitions may be broad enough to recognize (and impose liability for) violence, threats, or any such conduct that makes the workplace unsafe. Such legislation also usually contains provisions protecting persons who work alone or in remote locations.

More specifically, employees in Quebec are also protected against “psychological harassment” in the workplace. The Canadian provinces of Alberta, British Columbia, Prince Edward Island, and Saskatchewan also have enacted specific provisions on workplace violence in their health and safety laws.

In addition, there is a proposed federal regulation and a proposed amendment to Ontario’s health and safety law. These provisions go further than the general provisions and spell out specific standards and requirements for employers. Under most of these laws employers must generally:

• create a comprehensive workplace violence prevention policy;
• conduct “risk assessments”;
• to the extent reasonably practicable, develop “controls” and “procedures” to eliminate or minimize workplace violence;
• provide training for managers;
• develop procedures for investigating and reporting incidents and calling for assistance when required;
• allow employees to refuse to work where they reasonably believe they may be in danger of workplace violence; and
• maintain various records.

Regulators taking note
Regulators have taken their cue from the increased legislative action.

For example, the Ontario Ministry of Labour, in a joint effort with the Ontario Workplace Safety and Insurance Board, has made workplace violence a priority through their workplace violence prevention initiative.

Health and safety officers have been instructed to make orders and issue directives to employers in certain industries either because there is no workplace violence prevention program in place or because the program is lacking in some way.

Government health and safety officers have broad powers under health and safety legislation to allow them to enter a workplace and perform various activities to enforce compliance with health and safety legislation.

For example, officers may conduct safety audits and inspections. They may also investigate the circumstances surrounding the report of a contravention, work accident, refusal to work, or hazardous occurrence. Offenses can lead to significant fines, and in some cases, imprisonment.

What should employers do?
Unfortunately, workplace violence seems to be on the rise. In addition to the legal risks, incidents of workplace violence take their toll on organizations in other ways. These may include lower worker morale, turnover, blemished company image, and loss of clients.

Some things that employers should consider doing are as follows:

• Review legislative and regulatory requirements to ensure compliance.
• Establish a comprehensive workplace violence policy.
• Undertake the risk assessment and other measures outlined above.
• Offer a confidential Employee Assistance Program to allow employees subject to workplace violence or those with personal problems to seek help.
• Ensure that proper security measures are in place.
• Keep detailed records of any workplace violence, investigation or work refusal.
• In short, as employers you should be vigilant and you should ask your employees to be vigilant.