Welcome... to the July edition of our 2011 newsletters.

 

We have experienced several calls within the past year or so from companies based in Canada or from companies with facilities in Canada, that are at least partially driven by legislation mandating the adoption of policies and procedures around the issue of Workplace Violence.

 

We wanted to address this subject in this issue of our newsletter, not only for our clients with Canadian facilities, but also because we believe this represents a trend that will be witnessed increasingly in other countries, including the United States.

 

Ontario recently became the seventh province in Canada to enact Workplace Violence legislation as amendments to the Occupational Health and Safety Act, when it passed Bill 168, which went into effect approximately one year ago. The legislations of the various provinces are similar, but we will focus on Ontario's as an example, and to make sure that we do not over-generalize. My summary certainly does not constitute legal advice, and would advise consulting an appropriate attorney for more detail.

 

Bill 168 (now Part III.0.1 of OHSA) requires the following basic requirements, among others, of companies with more than 5 employees:

1. Prepare a Policy with respect to Workplace Violence 
1. Review this policy at least annually
2. Post it in a conspicuous place
2. Develop a Program to implement this policy, that includes:
1. Measures to control risks identified in its risk assessment
2. Procedures to summon immediate assistance when needed
3. Reporting processes
4. How the employer plans to deal with incidents and complaints
3. Conduct a Risk Assessment and report the results to:
1. The joint health and safety committee or representative, or
2. The workers, if there is not committee or representative
4. If there is potential hazard due to Domestic Violence, take "every reasonable precaution" to protect the workers
5. Prepare a Policy with respect to Workplace Harassment 
6. Develop a Program to implement this Harassment policy, that includes:
1. Reporting procedures
2. How the employer plans to deals with incidents and complaints
7. Right to Refuse Work. Ontario's legislation is the only one thus far to expressly state that workers have a right to refuse to work if they believe that their physical well-being is at risk due to potential workplace violence.

 

It would be significant to point out that the guidelines and the various definitions of the target behaviors, policies, programs and risk assessments are all quite comprehensive. For example, "workplace violence" includes acts and attempts at physical force, but also, includes statements that would be "reasonable.. to interpret as a threat". 

 

"Harassment" is defined as "a course of vexatious conduct or comment against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."

 

The right to refuse work clause is unique to this Ontario legislation. In addition, there is a clause that states that an employer or supervisor has a duty to provide to a worker "personal information" related to a potential risk of workplace violence from another person with a history of violent behavior if the worker is likely to encounter that person or will be potentially exposed to injury from that person. 

 

The Risk Assessment must take into account both "static" and "dynamic" data, and circumstances "specific to the workplace" - that appear to make it necessary to conduct a separate assessment of each work environment, according to my (non-legal) reading of this document. 

 

Des Taljaad, VP of Operations and Security Services of the Toronto-based AFI International Group, reports that, "although there is existing Federal legislation mandating some form of protection, the various provinces are taking this a step further and placing liability squarely on the employer for failure to properly mitigate and investigate incidents of violence in the workplace. Some provinces are now going even further in making it mandatory for companies to begin reporting all incidents to their responsible Ministries." 

 

In the first 9 months of the legislation's implementation, Ontario has investigated more than 400 complaints involving workplace violence and more than 1,000 complaints involving workplace harassment. All together, over 1,100 orders were issued associated with this new law.

 

As noted, I believe that this represents a trend worldwide, and is certainly something that should be carefully considered by any organization with workplaces that would be covered by this and similar legislations. 

 

CRA has recently partnered with the AFI International Group and its affiliates to help companies more comprehensively address various aspects of this legislation, including organizational risk assessment, policy development and program implementation. 

 

As always, I hope you have found this information useful to you. If there are any questions or if we can be of assistance, please give us a call.

 

 

Marc McElhaney, Ph.D.

Critical Response Associates