The domestic violence-related provision under Bill 168 is already stirring up a debate among OHS managers with respect to balancing the employer’s responsibility to protect workers, with an employee’s right to privacy.
The question was raised at a recent workshop on the new workplace violence legislation, as attendees looked for legal expert advise on putting in place domestic violence protection policies while protecting the privacy of the worker involved. The workshop entitled, Understanding and Preparing for Bill 168: The New Workplace Violence and Harassment Prevention Initiative, is part of a series of Bill 168 workshops being conducted by Toronto-based law firm Gowlings throughout the province.
Under Bill 168, if employers “become aware or ought reasonably to be aware that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.”
While there is no specific duty on the employer to report domestic violence issues, employers should build domestic violence into their health and safety policies, said Goldie Bassi, a lawyer at Gowlings who was one of the speakers at the seminar.
By building it into the policy, employers and employees will have guidance on how to handle domestic violence that could endanger the workers, she added. “The best way is to approach and speak to the person privately.”
Then there’s the question of when to involve the police and outside authorities, which Bassi said should be at the discretion of the employer. “If you believe it’s serious enough – if that person and other workers are in danger – then calling the authorities is your discretion,” she said.
Another controversial requirement under Bill 168 is the additional duty on the employer to provide information if an employee is at risk of violence from a person that has a history of violence. The employer’s duty is to tell only that other worker who is at risk because of his co-worker’s violent history, Bassi noted.
But even finding out whether an employee has a violent past can also be a challenge.
“It’s tough. Are you going to do background checks now before you hire people?” Bassi said.
Once Bill 168 is passed, employers will need to revisit their health and safety policy and ensure that provisions for workplace violence protection are included in the policy, said David Marchione, an OHS consultant with Gowlings.
“Now (workplace violence protection) is no longer a ‘nice-to-have’, it’s a ‘has-to-have’. And you don’t have to have two separate policies; workplace violence can be included in the health and safety policy,” Marchione said.
Marchione suggests that in preparation, employers should set up a Bill 168 “compliance plan.” This plan includes: developing a policy; conducting risk assessment; developing a program; worker training; incident investigation, and; program audit.
Getting buy-in from the employees is essential, Marchione said. “The policy has to be posted and has to be reviewed. Make it available and let your people know it’s there and make it available to them.”