April 22, 2010
by Israel Foulon LLP

The incidents of violence and harassment in Canadian workplaces are more prevalent than some may believe. According to a 2004 Statistics Canada survey:

17% of all self-reported incidents of violent victimization, including sexual assault, robbery and physical assault – representing over 356,000 violent incidents throughout Canada – occurred in the workplace.

Physical assaults made up a higher portion of all violent incidents in the workplace, representing 71% of all incidents, compared to 57% of violent non-workplace incidents.
Workplace incidents were more common in certain employment sectors: 33% of all violent workplace incidents involved a worker in social assistance or healthcare services such as hospitals, nursing or residential healthcare facilities; 14% involved workers in accommodation or food services, such as hotels, bars or restaurants; and 11% involved workers in educational services.

Approximately half (49%) of all violent workplace incidents occurred in locations such as office buildings, factories, stores or shopping malls. Other common locations for violent workplace incidents were: hospitals, prisons or rehabilitation centres (31%); restaurants or bars (10%); and school premises (10%).

Workplace violence incidents involving female victims came to the attention of the police much less likely than those involving male victims (20% versus 57%).

Perhaps as a response to the foregoing facts, the Ontario Legislature passed Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009 (“Bill 168” or the “Act”). When Bill 168 comes into force on June 15, 2010, the Province of Ontario will join the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia and Prince Edward Island, as well as our federal jurisdiction, in enacting legislation designed to address workplace violence and harassment.

Bill 168 will significantly expand the duty of employers to ensure that they provide a violence- and harassment-free workplace to their workers. This newly-passed legislation stands in contrast to section 25(h) of the current Occupational Health and Safety Act (which section provides that an employer must take every precaution reasonable in the circumstances for the protection of a worker), from which one can only infer a duty to maintain a violence- and harassment-free workplace.

Bill 168 will introduce:

definitions of workplace violence and harassment;

a duty of employers to implement policies and programs to prevent and address incidents of workplace violence and harassment;

a duty of employers to assess and reassess risks of workplace violence;

a duty of employers to advise employees of general and specific risks of workplace violence;

a duty of employers to intervene in circumstances where domestic violence may spill into the workplace; and

a right of employees to refuse to work where they have reasons to believe that workplace violence may endanger them.

We address each of these matters below.

2. Definitions of “Workplace Harassment” and “Workplace Violence”

To understand the scope of the obligations that the Act will impose on employers, one must pay careful attention to the definitions of the terms “workplace harassment” and “workplace violence”, as such terms will be used in the Act.

“Workplace harassment” will be 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.”

“Workplace violence” will refer to:

(a) the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, or

(b) an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.

The definition of workplace harassment casts a broad net to restrict unwelcome or violent activity. Notably, workplace harassment refers to both unwelcome comments and unwelcome conduct.

In addition, the definition of workplace violence refers to both the actual exercise of physical force and attempts to exercise physical force that actually causes or may cause physical injury to a worker. Having regard to the definition of workplace violence in particular, it is clear that a perpetrator will not need to have actually applied physical force upon a worker to have engaged in workplace violence. Nevertheless, one criticism of Bill 168 is that the definition of workplace violence will be limited to physical violence and does not go as far as legislation in Quebec which prohibits “psychological” harassment.

The foregoing definitions of workplace harassment and workplace violence will have an impact on the nature of the duty of employers to proactively address such issues.

3. The Duty to Enact Policies and Programs Concerning Workplace Violence and Harassment

Once the Act comes into force on June 15, 2010, employers will be required to enact policies and programs with respect to workplace violence and workplace harassment. In workplaces of six or more workers, such policies and programs will have to be in writing and posted in a conspicuous place in the workplace. Moreover, employers will be required to review the policies not less than on an annual basis.

Bill 168 will compel employers to develop and maintain programs to implement the workplace violence and workplace harassment policies they have enacted. Where workplace violence is concerned, a program will be required to:

(a) include measures and procedures to control risks of violence that are identified in the risk assessments discussed below;

(b) include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur, or when a threat of workplace violence is made;

(c) include measures and procedures for workers to report incidents or threats of workplace violence to the employer or supervisor;

(d) set out how the employer will investigate and deal with incidents, complaints, or threats of workplace violence; and

(e) include any other elements prescribed by regulation.

Where workplace harassment is concerned, a program will not need to be as complex. Such program will simply be required to:

(a) include measures and procedures for workers to report incidents of workplace harassment to his/her employer or supervisor;

(b) set out how the employer will investigate and deal with incidents and complaints of workplace harassment; and

(c) include any other elements prescribed by regulation.

4. Assessments of the Risk of Violence

As noted above, an employer’s program to implement a workplace violence policy will have to provide for measures and procedures to control risks of violence. Bill 168 will require employers to actively assess such risks. Their assessment is to take into account:

(a) circumstances that would be common to similar workplaces;

(b) circumstances specific to the workplace; and

(c) any other elements prescribed by legislation.

Once an assessment has been completed, the employer will be obliged to advise its health and safety committee or representative (or its workers directly, if there is no health and safety committee or representative) of the results of the assessment, and to provide them with a copy of the assessment if it is in writing. Reassessments are to occur as often as is necessary to ensure that workplace violence policies and programs continue to protect workers. Notably, the Act will leave it to employers to determine how assessments and reassessments are to be conducted and with what frequency reassessments are to occur.

5. Domestic Violence

In an effort to prevent domestically-related workplace violence, the Act will impose a novel duty on employers who become aware, or who ought reasonably to be aware, that domestic violence will likely expose a worker to physical injury in the workplace. In such circumstances, employers will be required to “take every precaution reasonable in the circumstances for the protection of the worker.” This obligation to protect against domestic violence in the workplace will be the first of its kind in any Canadian jurisdiction.

This aspect of Bill 168 has raised some concerns within the legal community and among Human Resource professionals for is lack of clarity. The scope of the objective standard used to assess when an employer ought reasonably to be aware that domestic violence may spill into in the workplace is difficult to define. One must ask where the line will be drawn between domestic violence and potential workplace violence. Indeed, the Act does not define “domestic violence”. What will be the indicia of a risk of workplace violence in less obvious cases of domestic violence?

6. Disclosure of Information to Workers

In asserting an obligation upon employers to exercise due diligence to prevent workplace violence and address workplace harassment, the Act will grant workers the right to receive information concerning risks of violence (but not harassment) that they may face during the course of their employment. Thus, in addition to ensuring that their workers have information and instruction on the contents of workplace violence and workplace harassment policies and programs, as well as information concerning the outcome of workplace violence risk assessments, employers will be required to provide information, including personal information, related to a specific risk of workplace violence from a person with a history of violent behaviour. Such an obligation will arise if

(a) a worker can be expected to encounter a person with a history of violent behaviour in the course of the worker’s work; and

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

The scope of information to be disclosed includes only such information that is reasonably necessary to protect the worker from physical injury. Since the Act will not clarify the precise nature of the information that is to be disclosed, employers will be left in the difficult position of exercising their discretion to ensure the safety of their workers, on the one hand, and the protection of the privacy others, on the other, having regard to the degree of risk of harm.

Notably, the duties of employers as set out in section 25 of the Act, supervisors as set out in section 27 of the Act, and workers as set out in section 28 of the Act will apply, as appropriate, with respect to workplace violence.

7. Right to Refuse Work

Once the Act comes into force, a worker who has reason to believe that workplace violence is likely to endanger him/her will have the right to refuse to work or do particular work. He/she will, as with current rights of refusal, be required to report the circumstances of his/her refusal to his/her employer or supervisor who in turn will be required to conduct an investigation. Until the investigation is completed, the worker will be required to remain in a safe place as near as reasonably possible to his/her work station, and he/she will have to be available to the employer or supervisor for the purposes of the investigation. This obligation differs from that presently found in the OHSA, which legislation requires workers who have refused to work to remain near their workstations during the course of an investigation.

If, after the investigation is complete, the worker has reasonable grounds to believe that workplace violence continues to be likely endanger him/her, the worker will be permitted to refuse to work or do particular work and the employer, the worker, or a representative of either of them, will be required to contact a Ministry of Labour inspector who will in turn conduct an inspection and render a decision on the merits of the refusal.

8. Conclusion

As can be seen, Bill 168 will impose new responsibilities upon employers to ensure a harassment- and violence-free workplace. It is therefore incumbent upon employers to consider the ways in which they can take proactive measures to ensure compliance with the new legislation.

This brief has been provided to you for informational purposes only and is not intended to provide legal advice which in all circumstances must be tailored to the specific facts of any problem. You should obtain proper legal advice in order to determine how the information provided above applies to your situation. Please feel free to contact us to learn more.

WORKPLACE VIOLENCE RISK ASSESSMENT CHECKLIST

This document is designed to act as a guide in conducting a risk assessment for the workplace. It is of necessity general in nature and should be customized for each particular workplace. The ultimate goal of the risk assessment is to identify potential risks of workplace violence and develop plans to reduce those risks. The method of assessment requires a comprehensive review of potential threats of violence inherent in each aspect of the workplace’s operating procedures and within the workplace environment.

1. Methods of Conducting the Violence Risk Assessment

In this section, identify the key ways in which the violence risk assessment will be conducted. Consider utilizing some or all of the following:

consulting outside consultants

consulting internal stakeholders (consider security, plant/building maintenance, operations manager, human resources, health and safety, risk, legal);

conducting employee surveys to identify perceived risks;

physical inspection of workplace premises;

review of past violence or threat incidents (consider discipline files, health and safety files, grievances, past security breaches or incident reports, existing policies/procedures, workplace floor plans); and

consulting with similar businesses as to their threat assessments and security practices.

2. Appointing a Risk Assessment Team

In this section, identify who is going to be involved in completing the risk assessment and implementing the workplace violence policy. Consider including the following:

senior management

operations manager

security

plant/building maintenance

human resources

health and safety

legal

outside consultant

3. Areas of Focus of Risk Assessment – Identifying Risks

In this section, identify the particular risk issues that arise in the workplace. In particular, the risk assessment should consider the possibility of workplace violence from the following perspectives:

(a) Risks of the Physical Workplace Environment

In this section, a physical review of the workplace environment should take place, identifying any aspects of the physical workplace environment that may cause hazards. Consider the following:

isolated work areas or areas where workers may work alone;

isolated doors, closets, hallways, and driveways;

late or early hours of operation which may create an isolated work area;

inadequate lighting;

unrestricted areas where unauthorized individuals can gain access;

inadequate locks on doors and windows;

a lack of escape routes;

presence or absence of appropriate signage, telephones, emergency buttons;

parking facilities (lighting, isolated, time of day accessed);

nature of the neighbourhood in which the business is located (high crime?).

(b) Operational Risk Factors

In this section, review the nature of the business and the unique aspects of the business and working environment that may create special risks. Consider the following:

do workers work alone or in isolation?
hours of work – are there early or late hours of work?
handling of money?
are workers accessible to the public in the course of work?
do workers travel to unknown work environments?
do workers exert authority over others?
do workers interact with potentially emotional, violent or mentally unstable clients?

does the nature of the business operation create the risk of aggressive responses from members of the public?

what risks have similar businesses encountered?
is there an adequate emergency response protocol in place?
(c) People in the Workplace Environment

In this section, consider both the categories of individuals who may be present in the workplace environment as well as any specific individuals who may present a risk.

Consider the following:

co-workers
customers, clients, patients and other authorized visitors to the workplace
possibility of unauthorized visitors
do any co-workers, customers, clients, patients have a prior history of violence and what specific steps can be taken to reduce the risk of a re-occurrence?
are workers adequately trained and competent to deal with a threat situation?

4. Risk Assessment Report and Recommendations

In this section, the risks that have been identified should be outlined with specific recommendations as to how the risk can be best addressed. A formal report should be prepared. Potential problems and proposed solutions must be included.

Not all risks can be fully eliminated. The severity of the risk and the likelihood of occurrence should be considered. The costs of addressing a risk must be proportional to the severity and likelihood of occurrence. The operational needs of the business must also be balanced as against the likelihood of occurrence and severity of the risk.

This brief has been provided to you for informational purposes only and is not intended to provide legal advice which in all circumstances must be tailored to the specific facts of any problem. You should obtain proper legal advice in order to determine how the information provided above applies to your situation.

POLICY FOR ADDRESSING WORKPLACE VIOLENCE

SAMPLE OUTLINE

1. Our Workplace Violence Policy

Under this heading, include the employer’s general policy concerning non-tolerance for workplace harassment and violence.

The policy should set out the definition of “workplace violence” as set out in the Occupational Health and Safety Act.

“Workplace violence” means:

(c) the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, or

(d) an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.

2. Our Measures and Procedures to Control Risks of Violence

Under this heading, include measures and procedures that the employer will implement to control the risks of violence that were identified in the employer’s risk assessments.

Suggestions:

measures and procedures may include:

routine inspections of workplace areas that may present security hazard;
the hiring of security personnel;
the requirement that all workers carry and wear ID badges on their person;
the use of security or surveillance cameras;
the use of card or coded access systems;
the use of metal detectors;
hiring of guards and/or guard dogs;
erecting partitions or barricades;
placement of visible emergency exit signs;
placement of distress alarms;
the implementation of after-hour buddy systems; and/or
offering self-defence courses.

identify security contacts and management representatives who should be contacted if workplace harassment occurs or if workplace violence has occurred or may likely occur;

provide training with respect to the employer’s workplace harassment and violence program; and

identify mechanism by which employees may voice general concerns for workplace safety (usually through Joint Health and Safety Committee).

3. Immediate Action When Faced with Workplace Violence

Under this heading, include measures and procedures that employees should follow to summon immediate assistance when workplace violence occurs or is likely to occur, or when a threat of workplace violence is made.

Suggestions:

employees should immediately contact 911, security, and Human Resources (or a designate identified by the company to all employees);

employees should make a list of the individuals involved in the violent conflict as well as any witnesses;

employees should attempt to document the events as they are occurring;

employees should, if it is safe to do so, remain at work until authorities arrive and cooperate with their investigation.

4. Reporting Workplace Violence to a Supervisor or Manager

Under this heading, include measures and procedures for employees to report incidents or threats of workplace violence/harassment to a supervisor or designate. Set out how the employer will investigate and deal with incidents or complaints of workplace harassment or violence, and threats of workplace violence.

Suggestions:

employees should discuss the incident with someone in a position of authority with whom he/she is comfortable;
a written complaint should be completed by the employee that details the nature of the alleged incident; who was involved in it; the date and time at which it occurred; and whether there were any witnesses to it;
an appropriate neutral manager or external investigator designated by the employer should investigate the complaint thoroughly and expeditiously by meeting with and listening carefully to the employee who made the complaint;
manager or investigator should interview the person being complained about, if possible, as well as any witnesses and review any other evidence (e.g. video surveillance);
the employer should maintain confidentiality throughout the investigative process to the extent practical and appropriate under the circumstances;
written notes of the investigation should be kept.
5. Outcome of Investigation

Under this heading, advise of the manner in which the results of the investigation will be reported and addressed.

Suggestions:
the manager or investigator should compile a written report that summarizes the result of the investigation and includes a recommendation;
based on the results of the investigation, the employer should take appropriate corrective action, depending upon the nature of the incident(s) which took place and any relevant surrounding circumstances – corrective action may include sensitivity training or re-circulation of or re-training with respect to company policy concerning harassment or violence;
employees found to have engaged in harassing or violent behaviour should be subject to disciplinary action up to and including dismissal for just cause;
non-employees found to have engaged in harassing or violent behaviour in the workplace should be reported to the police;
consider whether all employees must be advised of a particular risk of workplace violence.

This brief has been provided to you for informational purposes only and is not intended to provide legal advice which in all circumstances must be tailored to the specific facts of any problem. You should obtain proper legal advice in order to determine how the information provided above applies to your situation.