Bill 168 FAQ Series: Challenges of complying with Bill 168 (Part 1 of 3)Written by Jeremy Warning and Cheryl A. Edwards 07 June 2010
Implementing Bill 168 involves so much more than creating and posting a new policy. As employers, managers and joint health and safety committees have grappled with the amendments, numerous issues and challenges involved with implementing the new workplace violence prevention requirements have come to light.
Following are some of the key implementation challenges we believe confront both local Ontario and national employers as they bring their organizations into compliance with the requirements of Bill 168.
FAQs on workplace violence and harassment policies
1.) Should there be separate or combined policies for workplace violence and harassment?
Since statements of policy are a standard starting point for most employers, one of the first key questions arising has been: “Can we have one violence and harassment policy or are separate policies required?”
Bill 168 requires employers to have in place both workplace violence and harassment policies. Where more than five workers are regularly employed in the workplace, these policies must be in writing and must be posted in a conspicuous place. Bill 168 does not specifically require a single policy, or separate policies and, as such, employers are free to draft their policies in the manner they believe is best.
In considering whether to have one policy or two, employers should consider the following issues:
Reporting: Employers may wish to have slightly different reporting requirements depending on whether the conduct at issue is workplace violence or harassment. Given the dangers inherent in workplace violence, mandatory reporting of violence from any customer, patient or client, visitor or co-worker, and obligatory remediation are desirable. However, there are separate considerations with respect to harassment as it will be defined under the OHSA.
The tremendously broad definition of harassment in Bill 168 means that a wide spectrum of conduct would, arguably, be subject to complaint, investigation and remedy under the policy and program. This could include harassment ranging from behaviour based on grounds protected under the Human Rights Code to much more trivial behaviour that can arise as part of workplace disputes. Such harassment can also be perpetrated by a range of individuals from all levels of the organization. Finally, victims may well have different levels of tolerance for harassing behaviour. To that end, the employer may wish to permit a greater amount of discretion in the hands of employees when it comes to reporting harassment by encouraging reporting rather than mandating it.
Initial employee response: The employer’s statement of expectations within a policy and program on how an employee is to respond to an incident of violence versus harassment will also likely differ. Many harassment policies suggest that, where an employee feels comfortable doing so, he or she confront the harasser and advise that the conduct or comments are unwelcome. This may well be a prudent step when dealing with harassment, but an employer will not wish to recommend or require that an employee engage in such actions when they are the victims of workplace violence.
Procedural expectations for responding to violence should be provided, and should range from calling law enforcement officials to reporting to human resources or other contacts, depending on the circumstances.
Existing harassment policy: Many employers will have discrimination and harassment policies that pre-date the enactment of Bill 168 and were implemented to be responsive to their human rights obligations. Existing human rights-related discrimination, harassment or respectful workplace policies should be amended to comply with Bill 168. This may mean as little as broadening the definition of harassment to ensure that it addresses not only human rights-protected harassment but also OHSA-protected personal harassment (unwelcome conduct or comment) that is not based on a protected ground, and ensuring that any reporting and investigation provisions comply with those required by Bill 168.
If the employer is drafting a workplace violence policy for the first time, but may have existing harassment policies and programs, it may make sense to create a standalone violence policy and program.