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Bill 168 revisited: Employers risk prosecution, fines for non-compliance

This legislation represents a significant change in how, and to what extent, workplace violence and harassment is regulated in Ontario and will play a significant role in shaping how employers address violence and harassment in the workplace. 

Bill 168 imposes significant administrative obligations upon employers. Employers must devise and post workplace violence and workplace harassment policies and review them at least annually. [Watch: COS webinar on Bill 168]

Definitions

Workplace violence means the use or attempted use of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, including a statement or behaviour that a worker could reasonably interpret as a threat to use physical force.

Employers should carefully note that the amendments to the OHSA now treat the threat of physical violence in the same way as actual physical violence. 

Workplace harassment means 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. 

Employers should note that unlike "harassment" as defined in the Human Rights Code, the definition of "workplace harassment" under Bill 168 is broader and includes conduct that is not necessarily related to a prohibited ground of discrimination, e.g. sex, age, ethnicity, religion, etc.

New obligations

Employers must now:

1.    "develop and maintain" a program to implement workplace violence and harassment policies;

2.    designate a person to act as a workplace coordinator with respect to workplace violence and workplace harassment, and set out the functions and duties of the coordinator;

3.    take every reasonable precaution to ensure the protection of a worker should the employer become aware, or ought reasonably to be aware, that domestic violence that would expose a worker to physical injury may occur in the workplace;

4.    provide information to workers relating to the risk of workplace violence from a person with a history of violent behaviour:

(a)    if it is expected that the worker could encounter that person at work; and

(b)    if the risk of workplace violence is likely to expose the worker to physical injury.

Employers should note that they are expected to carefully balance their obligations between respect to privacy and their health and safety obligations to protect workers.

Bill 168 also makes it clear that a worker has the right to refuse to work if the worker has reason to believe that they are in danger of being a victim of workplace violence.

Workplace violence assessment and program

Employers must carry out assessments to measure the risk of workplace violence that may arise.  In addition to taking into account its own workplace conditions, an employer's assessments must also take into account the conditions of other similar workplaces. 

The employer must advise the joint health and safety committee or the health and safety representative of the results of the assessment. If the assessment is in writing, a copy must be provided. If the workplace does not have a joint health and safety committee or a health and safety representative, the workers must be advised of the results of the assessments and of how to obtain a copy of the assessment (if the assessment is in writing).

Employers must re-assess the risks of workplace violence as often as necessary to ensure the workers' protection.

The workplace violence program must provide for the training of employees which must include:

1.    how to control risks of workplace violence;   

2.    how to seek help when workplace violence occurs or is likely to occur, or when a threat of workplace violence is made;

3.    how to report incidents or threats of workplace violence to the employer or supervisor; and

4.    how the employer investigates and deals with incidents, complaints or threats of workplace violence.

Employers must ensure that the workplace harassment program includes measures and procedures for reporting and investigating workplace.

The new law, while imposing new administrative burdens on employers, has a very important public policy objective – to make the workplace a safer environment for all employees.  It also brings Ontario into line with several other provinces that have already enacted similar legislation, including Alberta, British Columbia and Manitoba.

David Cherepacha

David Cherepacha is a partner at Davies Howe Partners, a Toronto law firm, where he handles business disputes and commercial litigation including employment, health and safety, and insurance law matters. Visit www.davieshowe.com for more information.
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