Workplace Violence and Harassment - Canadian Only.
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In response to a request for more information on workplace violence and harassment, we have prepared the following information in order to increase awareness and clarity surrounding the recent and proposed changes surrounding harassment and violence within the workplace. The following information discusses legislative compliance for several jurisdictions in Canada, including changes from a federal perspective as well as those that impact the province of Ontario.
Over the last twenty years, occupational health and safety legislation (including regulations) across Canada have progressively been expanded to address the risks and incidence of workplace violence, and specifically identify employer responsibilities. At the same time, changing social and societal norms resulted in increased attention to, and reduced tolerance for, certain negative social behaviours.
The Canada Labour Code (CLC), and the Federal Occupational Health & Safety Regulations (COHSR) which fall under it, apply to organizations that are within the federal jurisdiction (referred to here as federally-regulated companies).
Workplace Violence – Federal Legislation
In 2000, provisions were added to the CLC which require the employer to protect workers from violence in the workplace. In 2008, the Health & Safety Regulations were amended to widen the scope of employer-required protective measures against workplace violence (which include broad remedies to workers).
Workplace violence is defined, for federally-regulated companies, as any action, conduct, threat or gesture of a person towards an employee in their workplace that can reasonably be expected to cause harm, injury or illness to that employee (COHSR, s. 20.2). (In comparison, the legislation that covers Ontario-regulated companies defines it in terms of the exercise or threat of physical force against a worker, which is very similar.)
For federally-regulated companies, there are five principal employer obligations/duties:
Development of policies / programs
Reduction or elimination of the risk(s)
Instruction and training of workers
Proper response to incidents
Following are the specific items for each of the above:
A) i) identify potential hazards in the workplace (COHSR, s. 19.1).
ii) identify and assess the workplace for potential workplace violence hazards (COHSR, s. 20.4 & 20.5).
This would include a consideration of the nature of the workplace, the type of work, the conditions of work, the specific circumstances of the workplace, the experiences of similar workplaces, and any other relevant elements.
This is likely provided to the Health & Safety Committee / Representative.
B) i) prevent and protect against violence in the workplace (CLC, s. 125(1)(z.16)).
ii) develop and implement a program for identifying and preventing hazards (COHSR, s. 19.2-19.5).
iii) develop a violence prevention policy (COHSR , s. 20.3).
These programs and policies will need to be reviewed periodically.
C) i) take preventative measures to limit workplace hazards (COHSR, s. 19.1).
ii) create controls to eliminate the risk of workplace violence (COHSR, s. 20.6).
This should include delineating the worker’s right to refuse work if s/he believes workplace violence is likely to endanger the worker.
D) i) provide employee education regarding workplace hazards (COHSR, s. 19.1).
ii) highlight for employees the workplace hazards, and their duty to report hazards and incidents (COHSR, s. 19.6).
iii) educate employees on the nature and extent of employee exposure to workplace violence, the factors that contribute to workplace violence, the communication system in place, prevention measures, and reporting procedures (COHSR, s. 20.10).
This could include providing some personal information as necessary, related to a risk of workplace violence from a person with a history of violent behaviour, if the person can be expected to encounter that person in the course of his/her work.
E) i) ensure that employees know that they must report all hazardous occurrences to their employer (CLC, s. 126(1)(g) and COHRS, s. 15.3).
ii) investigate, record, and report all hazardous occurrences (COHSR, s. 15.8(1)).
iii) develop written procedures and to ensure that employees are aware of procedures to summon immediate assistance in response to workplace violence and develop/implement measures to assist employees who have experienced workplace violence (COHSR, s. 20.8).
iv) investigate reports of workplace violence (if the incident cannot be resolved, then appoint a competent person to investigate, who will provide to the employer a written report with recommendations) (COHSR, s. 20.9).
This may include spelling out how relevant complaints will be handled.
Workplace Sexual Harassment – Federal Legislation
In federally-regulated companies, the employer needs to explicitly address the risks and possible occurrence of sexual harassment. This is covered in Division XV.1 Part III of the Canada Labour Code (CLC).
Every employer is required to:
make every reasonable effort to ensure that no employee is subjected to sexual harassment
must (after consulting with employees or their representatives) issue a policy on sexual harassment.
The policy must contain at least the following items:
a definition of sexual harassment that is substantially the same as the one in the Code;
a statement to the effect that every employee is entitled to employment free of sexual harassment;
a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;
a statement to the effect that the employer will take disciplinary measures against any person under his or her direction who subjects any employee to sexual harassment;
a statement explaining how complaints of sexual harassment may be brought to the attention of the employer;
a statement to the effect that the employer will not disclose the name of the complainant or the circumstances related to the complaint to any person unless disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation to the complaint;
a statement informing employees of their right to make a complaint under the Canadian Human Rights Act (CHRA).
inform employees about the sexual harassment policy (this should be done by posting it where it is likely to be seen by employees).
In the legislation of some other jurisdictions, harassment of all types is addressed, i.e. sexual and non-sexual. For example, in Ontario’s Bill 168, harassment is defined as comments or conduct that is, essentially, “unwelcome”. Insofar as both harassment and violence have a negative impact, they are addressed together in that piece of legislation. It stipulates that employers (Ontario-regulated) must (among other things) devise harassment (and workplace violence) policies, and develop programs to implement such policies.
Bill 168 – Ontario’s Law on Workplace Violence and Harassment, which came into effect in 2010, applies to organizations that are under the jurisdiction of Ontario. It indicates the employer obligations/duties with respect to workplace violence and harassment issues.
Workplace Violence and Harassment – Ontario
On December 9, 2009, the Ontario government passed Bill 168, a series of detailed amendments to the provincial Occupational Health and Safety Act (OHSA) to require worker protection from violence and harassment, and establish new specific worker rights relating to violence. These amendments, known as Bill 168, came into force June 15, 2010.
Below are the highlights of the new Occupational Health and Safety Act obligations (and worker rights) for those employers under Ontario regulation. The amendments contain seven key areas:
mandatory new employer policies
required risk assessments
obligations to respond to domestic violence in the workplace, and employer reporting requirements
Each of these are discussed in detail below.
Employer Obligation To Prepare Written Violence And Harassment Policies
Where five or more workers are regularly employed at a workplace, Ontario employers are required to prepare and post a workplace violence policy. A definition of “workplace violence” was enacted. “Workplace violence” under the Ontario Occupational Health and Safety Act (OHSA) for purposes of employer obligations and exercise of worker rights means:
(i) the exercise of physical force by a person against a worker, in a workplace, that
causes or could cause physical injury to the worker;
(ii) an attempt to exercise physical force against a worker, in a workplace, that could
cause physical injury to a worker;
(iii) a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.
The OHSA also requires employers to prepare and post a written policy respecting workplace harassment at every workplace where more than five workers are regularly employed. “Workplace harassment” is defined to mean “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”.
Key Items To Include In Policies
The Ontario Ministry of Labour (MOL) recently released Guidelines respecting workplace violence and harassment. These Guidelines provide sample, separate workplace violence and harassment policies which are each one page long with a space for the signature of the president or CEO of the organization. As such, the MOL has now provided some indication of what they should find acceptable when conducting inspections for compliance. At the same time, the MOL does give employers considerable discretion over the content, style and format of the workplace violence and harassment policies, particularly since they must be understood by staff, and may be used (when required) as a basis for discipline in the workplace. For example, an employer might choose to have a brief policy, and a much longer-worded procedural mechanism.
In preparing their workplace violence and harassment policy, employers need to carefully consider:
• The definition of workplace violence: Will it mirror the Bill 168 definition or will there be other elements? Is this a national organization or one with operations only in Ontario?
• The scope and application of the policy: Does it apply to all employees? Will it apply to contractors, visitors and guests to the workplace? Will it apply to social functions or other company sponsored/sanctioned events?
• Domestic violence: What will the policy say, if anything, about domestic violence that may manifest itself in the workplace, i.e. will it encourage reporting where a worker is experiencing domestic violence, or believes such violence may occur outside or in the workplace?
• The obligations of those in the workplace: Will the policy detail the organization’s, its managers’ and supervisors’ and workers’ duties under the policy? Will it set out procedural mechanisms for reporting so that these are available and posted?
• Reprisal or retaliation: Many organizations will want to have a statement that retaliation or reprisal against any person complaining about, or participating in, the investigation of an incident of workplace violence is prohibited. If so, and considering that discipline is a likely consequence for a breach, the organization should consider providing a definition of reprisal or retaliation.
When preparing the workplace harassment policy, the employer should have regard to the applicable items listed above - definitions, scope, obligations of workplace parties, and reprisal provisions. Many employers will have an existing discrimination and harassment policy that could be amended to comply with Bill 168. Regardless of whether an existing policy is amended or a new harassment policy created, given the very broad definition of harassment contained in Bill 168, employers will want to consider including a clear definition of harassment. Certain limitations may be placed on the type of behaviour and conduct that will be considered harassment and trigger investigation and employer response. This may include specifically identifying that an isolated act of rudeness or the reasonable exercise of management functions, including performance reviews, job assignments and discipline, do not amount to harassment. This will assist in ensuring that the policy and program are used meaningfully and effectively. For anyone concerned that this may be regarded as heavy-handed, or overly technical, it should be noted that the MOL Guideline embraces this as appropriate practice.
Workplace Violence and Workplace Harassment Programs
Employers must develop and maintain programs to implement both the workplace violence policy and the workplace harassment policy. Employers need to be aware that the specific and detailed requirements to prepare violence prevention programs and workplace harassment programs differ significantly under Bill 168. Workplace violence programs require the following:
• measures and procedures to control risks identified in a violence risk assessment (discussed below);
• measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;
• measures and procedures for workers to report incidents of workplace violence to the employer or supervisor; and
• the means by which the employer will investigate and deal with incidents or complaints of workplace violence.
Programs to protect workers from workplace harassment may be more limited. Minimum mandatory requirements are that the program:
• include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor; and
• set out the means by which the employer will investigate and deal with incidents and complaints of workplace harassment.
Risk Assessments for Potential Workplace Violence
Bill 168 requires that employers assess risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work. No assessment is specifically required under the OHSA for risks of workplace harassment. The employer’s risk assessment is required to take into account:
• circumstances that would be common to similar workplaces; and
• circumstances specific to the workplace.
Once complete, the employer must advise the joint health and safety committee, health and safety representative, or workers directly (if there is no committee or representative) of the results of the assessment and provide a copy of the assessment if in writing. Workplaces must be reassessed for risks of workplace violence as often as necessary to ensure that the policy and program continue to protect workers from workplace violence.
Required Worker Training Respecting Violence and Harassment
The Bill 168 amendments require that employers train workers in the contents of workplace violence and workplace harassment policies. The employer’s obligation to provide information and training under section 25 OHSA and a supervisor’s duty to advise workers of any potential hazard under section 27 OHSA will also include a new and rather controversial obligation. The amendments require the employer and supervisor to provide information, including personal information, related to risks of workplace violence from a person with a history of violent behaviour (for example a patient, customer or another worker) if the worker can be expected to encounter that person during the course of their work, and there is a risk of violence likely to expose the worker to physical injury. Disclosure of personal information must be limited to that information reasonably necessary to protect the worker from physical injury.
The training obligation imposed by Bill 168 may present a difficult compliance hurdle for employers both in terms of the logistics of training the entire workforce and in determining what information and instruction must be provided.
As noted above, full compliance with Bill 168 requires that workers be trained in both the employer’s workplace violence and harassment policies and programs. However, there is no prescribed format or style for such training. Bill 168 sets out a general requirement that the employer is to provide information and instruction that is appropriate for the worker on the contents of the workplace violence and harassment policy/policies and programs.
What this general obligation does establish is that, because workers must be trained on the program, which is to be specific to their workplace, generic training on Bill 168 will not meet the legislated training obligation. Employers must ensure that workers are provided with information and instruction that is particular to their workplace. The Guidelines suggest that during an audit, the Ministry of Labour will not focus on the form of the training but, rather, the results. This can be gleaned from the Guidelines which indicate that, after being trained, workers should:
• Know how to summon immediate assistance when workplace violence occurs or is likely to occur;
• Know how to report complaints or incidents of workplace violence and harassment to the employer;
• Know how the employer will investigate and deal with complaints and incidents of workplace violence and harassment; and
• Understand and be able to carry out the processes in place to protect them from workplace violence.
In light of this expected approach, employers would be wise to review the nature of any workplace violence and harassment training program (whether developed internally or by a third party) to ensure that the training program provides workers with information and instruction sufficient to meet the MOL expectation.
New Worker Rights To Refuse Work for Workplace Violence
The Bill 168 amendments to the OHSA clarify the right to refuse work for conditions in the workplace that constitute “workplace violence”. Historically, it has not been entirely clear that a worker may refuse work for workplace violence. The OHSA is now amended to permit a worker to refuse work if “workplace violence is likely to endanger himself or herself”, in addition to other grounds upon which a worker may refuse work. There is no amendment to the OHSA to permit a worker to refuse work where they believe that workplace harassment is likely to endanger the worker.
Notably, Bill 168 changes the obligation of a worker to remain near his or her workstation until an investigation is completed. The work refusal provisions in the OHSA will require that the refusing worker remain in a safe place “that is as near as reasonably possible to his or her workstation and available to the employer or supervisor for the purposes of the investigation”.
Employer Obligations To Respond to Domestic Violence
The most novel and controversial provisions of Bill 168 to the Ontario OHSA are those related to domestic violence. The OHSA will now require an employer to take every precaution reasonable in the circumstances for the protection of a worker if the employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace. Ontario will be the only jurisdiction in Canada to have OHS provisions specifically requiring that the employer react to domestic violence. No specific reasonable precautions have been outlined. Ordinarily, the obligation to take every precaution reasonable in the circumstances requires that the employer have regard to available standards, guidance from public organizations, and engage in creative solutions to protect workers from novel or complex workplace risks.
Reporting Workplace Violence to Ontario Ministry of Labour
The amendments now require that employers prepare a notice under section 52 OHSA in the event that a worker is disabled from their regular duties, or requires medical attention, as a result of workplace violence. These provisions are added to section 52 of the OHSA.