Skip to content

Finding middle ground between workplace safety obligations and privacy rights

By Linda Johnson
| www.cos-mag.com

The requirement imposed on employers by Bill 168 to disclose information about potentially violent workers remains the most difficult aspect of Ontario’s 2010 amendment to its Occupational Health and Safety Act, an HR consultant says.

Bill 168 requires employers to prepare written policies on workplace violence and harassment, devise reporting and response procedures, train employees on legal obligations and perform annual risk assessments to determine risk of violence.

It also requires them to provide information, including personal information, to any worker about a person with a history of violent behaviour if that worker is likely to encounter the person during their work and if the risk is likely to expose the worker to injury.

This obligation to disclose, however, presents many difficulties for employers who must also comply with privacy legislation, says Anna Aceto-Guerin, president of Cambridge, Ont.-based Clear Path Employer Services. In the first place, she notes, the law does not provide any guidance on what the term 'history of violence' includes. 

“What is [history of violence]?” she said. “Is it, ‘I have a police record from five years ago when I punched somebody in a bar,' or is it, ‘I went to anger management therapy, and I threatened people?’ We don’t know what it is. [Employers] have to assess that, and that’s a very difficult piece to figure out.”

It’s important for employers to plan how they will handle possible violence incidents, Aceto-Guerin says. Under Bill 168 they are required, once they become aware (or ought to be aware) of a potential threat, to “take every precaution reasonable” to protect workers. That means, she adds, that once an employer is made aware of a potential threat — whether by being told by the worker or witnessing a violent event at work — they must take some action.

“If you say, ‘I missed that,’ that’s not going to be good enough. Once you know, you know, and you can’t put the genie back in the bottle. You have to do something,” she says.  

While the law stipulates that the information revealed should be only enough to protect workers, knowing what to disclose and when still requires a lot of consideration, she says. An employer needs, for example, to think about how the disclosure of personal information will affect a person with a mental health problem, such as depression.

Exposing such a condition and embarrassing past history may lead an employee to be shunned by fellow workers; the resulting isolation could actually increase the risk of violence.

To help them with such considerations and to understand their obligations under Bill 168 in relation to existing privacy legislation, Aceto-Guerin recommends employers seek legal advice before devising their policy on violence and harassment.

“It’s worthwhile later on. With that opinion, you can document everything and bring it out if something happens,” she said. “And it’s part of ‘every precaution reasonable.’ You’re doing that. You’re getting external advice, and you’ve done everything you can.”

Principles of privacy

Cheryl Edwards, OHS lawyer with Heenan Blaikie, says employers can comply both with Bill 168 and existing privacy legislation by keeping in mind three principles of privacy law.

First, personal information can be disclosed without a person’s consent if the disclosure is required by (another) law. This is the case with both the Personal Health Information Protection Act (PHIPA), which governs the release of personal health information in Ontario, and with municipal privacy legislation. 

“So, if the Occupational Health and Safety Act of Ontario requires the disclosure, that’s an exception in the law,” she says. “You can disclose personal information if another law tells you to do that.”

Another key principle of privacy legislation is that an employer, or anyone else with private information, may disclose it if they believe the disclosure is necessary to eliminate or reduce a risk of serious bodily harm. This tenet underlies the right of disclosure in workplace violence incidents. It also came up during the H1N1 scare, Edwards says.

“The question came up, ‘can we disclose personal information if we believe that someone’s going to be at risk of terrible harm?’ And the answer is yes, from a privacy perspective.”

The third principle is minimal disclosure, she says. In releasing information, a person must disclose only as much as is required to comply with the safety legislation. For example, in the case of a student with a history of violence who requires special supervision, the school board would be required to inform anyone working with the student of their violent record.

But, under human rights law, they are not allowed to disclose a medical condition. So, they must simply provide information on the student’s previous actions and on how workers can protect themselves.

“They could say, ‘Here’s what happened. Here are the triggers.’ But they should not disclose that the student has X condition,” she says.

Ted Bridge, a lawyer and HR professional, agrees the possibility of violence in the workplace creates difficult and sensitive situations.  

“It’s a fine balance, to protect the rights of the individual to privacy and the obligation that you have as an employer under the act to alert employees to potential dangers,” he says.

However, he believes disclosing information, no matter how little, should be an employer’s last resort. They should, instead, aim to recognize signs of trouble before a serious threat to safety arises.

Experts have identified many of the behaviours that, over time, signal that an individual is becoming more prone to violence, he explains. No act of violence comes out of the blue; rather, there is a “continuum” of violence, which starts with actions indicating something is wrong. If an employer can catch those behaviours and work with the employee to get help — through the firm’s EAP, for example — the employer can help the troubled person cope with their problems.

“If a person is usually mild-mannered and starts having confrontations with people or slams the door after a meeting, or if a person is generally gregarious and then becomes very insular — these are indicators of a change in behaviour,” Bridge says.

“It’s not a ‘profile;’ [the outward signs] don’t fit into a box. But there are behaviours that are indicators that, taken together, can set off alarms for management that they should monitor this employee carefully and see what can be done. The earlier you identify these behaviours and help them to get treatment, then you will avoid the problem in the long term.”

While trying to recognize the signs of potential violence, Bridge adds, managers should make sure that staff don’t become amateur doctors. While it’s good to be aware of signals of trouble, being too much on the alert only creates more anxiety and leads to incorrect judgments.      

“In sensitizing managers to identify behaviours that may indicate someone has a propensity to commit violence in the workplace, you don’t want to create ‘Dr. Phils’ or ‘Dr. Philses.’ So, if someone arrives in the morning in a bad mood, it doesn’t mean they’re going to commit violence,” he says, adding employees should take their concerns to a supervisor, HR or security. 

If, however, a worker who is considered a possible threat to colleagues refuses help altogether, the manager should remove the person from the workplace, Bridge says. Ideally, the worker should be put on medical leave until they can be seen by a health professional.

“If there are signs that someone could be an aggressor, then removal from the premises is paramount,” he says.

And in some situations, the decision to reveal personal information is straightforward, Bridge says. For example, if a worker has been suspended or let go and threatens to return and harm someone, the manager must inform all employees of the potential danger. Similarly, if a worker has an abusive spouse and has perhaps taken out a restraining order, workers must be told.

In many cases, Aceto-Geurin says, managers should seek assistance from outside medical help. Health professionals can point the worker in the right direction — to EAPs or counsellors — and alert employers to risks.

“They can also speak with the individual and keep things confidential. They won’t share with you information like a diagnosis, but they can share with you concerns they might have, techniques you might use. They can work with you to help get the individual back to work,” she says.

Edwards says her firm has had many clients concerned about the disclosure requirement in Bill 168. She agrees with Aceto-Guerin that employers should get legal advice regarding disclosure before drafting their workplace policies.

“With such a complex issue, it’s usually a good idea — because of the interplay of all pieces of legislation,” she says.

Add Comment