By Alix Herber
Canada’s two largest provinces — Ontario and Quebec — now have laws requiring employers to seek to provide workplaces free of “harassment.” No longer limited to human rights-related harassment, the term is broadly defined in these laws. Further, Ontario’s new law extends beyond harassment. It, like the federal law, also will require antiviolence policies and programs. These laws will apply regardless of whether a workplace has any prior history of such problems.
Ontario’s Bill 168, the Occupational Health and Safety Amendment Act, will come into force in June 2010. (See our previous articles on this bill by Karen Sargeant, May 5, 2009, and Brian Smeenk, May 19, 2009.)
With Canada’s two largest provinces and the federal jurisdiction now having such laws, it may well be that other provinces and territories will soon follow.
Requirements in Ontario
Under Bill 168, employers will be required to develop written policies with respect to both workplace violence and workplace harassment. If you are an employer, you must review these policies at least once a year even if you haven’t had any incidences of violence or harassment. These policies must be posted in any workplace that has more than five employees.
In addition, employers will be required to implement programs to prevent workplace violence and harassment.
Workplace violence programs
As of June 2010, Ontario employers will be responsible for developing and implementing a workplace violence program.
“Workplace violence” is broadly defined in the new legislation as including the actual, attempted, or threatened use of physical force that could injure a worker.
Before implementing such a program, employers must assess the risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work. The results of this assessment must be reported to the joint health and safety committee or worker representative or, alternatively, to the workers directly.
No guidance has been provided as to how you should “assess” the risks of violence in your workplace.
The workplace violence program must include measures and procedures to:
- control the identified risks;
- get immediate help when violence happens or is likely;
- report incidents or threats of violence; and
- investigate and deal with incidents and complaints.
The policies and program must even include measures to deal with domestic violence that may erupt in the workplace. Bill 168 says that if an employer “… ought reasonably to be aware, that domestic violence … may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.”
Ontario’s law also contains new disclosure requirements where there is a risk of violence from a person with a history of violent behavior. This obligation will exist if the worker can be expected to encounter such a person in the course of his or her work and may therefore be exposed to the risk of physical injury. This disclosure obligation may include personal information about the person with the violent history.
The law contains no guidance on how such persons are to be identified. But it would seem to include fellow employees, patients, or customers. The law then says that an employer should not disclose more confidential information than is reasonably necessary to protect the worker from physical injury. The application of these rules will no doubt be contentious.
Workplace harassment programs in Ontario
“Workplace harassment” is broadly defined 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.”
An employer’s program must include measures and procedures for workers to report incidents of workplace harassment. It must also set out how you, as the employer, will investigate and deal with incidents and complaints of harassment.
Ontario employers’ existing policies will need to be reviewed and refined to meet the requirements of this new law. It’s important to note that while harassment is already prohibited under the Ontario Human Rights Code, the new law defines harassment much more broadly than the Code.
Workplace refusals
Bill 168 also amends the work refusal section of the Occupational Health and Safety Act. Workers will have a right to refuse to work if they believe workplace violence is likely to endanger them. The law sets out rules governing the investigation of such work refusals.
What this means for Canadian employers?
For a number of years Quebec employers have been required to deal with the broad prohibition against “psychological harassment” in the workplace contained in the Act Respecting Labour Standards. That law defines harassment as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.” A considerable body of case law has been developed in Quebec applying this broad definition to actual situations. One must understand that body of case law to appreciate the scope and limits of Quebec’s law.
Similarly, since 2008, the federal Occupational Health and Safety Regulation – Violence Prevention in the Workplace obliges federally regulated employers to adopt antiviolence policies. Violence for that purpose includes the concepts of bullying, teasing, abusive, or other aggressive behavior. Federal employers must assess the potential for workplace violence. They must then implement systematic controls to eliminate or minimize such risks.
Ontario may also see the development of regulations providing more detailed requirements for certain parts of Bill 168. But it’s expected that, as in Quebec, the true scope of Ontario’s Bill 168 will be better understood only with the development of case law.
In any event, it is advisable for employers to now review existing policies and procedures. Ontario employers should ensure compliance with Bill 168’s requirements effective June 2010. Prudent Quebec and federal employers should already have policies regarding harassment and/or workplace violence in place. In other Canadian jurisdictions, it may be reasonable to expect legal changes along these lines in the months and years ahead. If you operate in those other jurisdictions, it may be prudent to review your policies and procedures for those locations as well.
