Bill 168, Ontario's sweeping new workplace violence and safety legislation, takes effect June 15, coming at an inopportune time for provincially regulated employers including subsidiaries of U.S. companies.
"Many companies cut their safety budgets in the recession, even as the Ministry of Labour [MOL] stepped up enforcement," says Cheryl Edwards, a partner at Heenan Blaikie. "Bill 168 imposes positive obligations that will heighten the effect of that double whammy."
The legislation, passed Dec. 10, 2009, amends the Occupational Health and Safety Act (OHSA) by requiring employers with five or more employees to develop and implement preventative measures to deter workplace violence and harassment against employees either by fellow employees or by members of the public.
"The law is clear that employers must implement both policies and programs to deal specifically with these hazards," says Mary Beth Currie, a partner at Bennett Jones. "And given the broad definitions of 'employer' and 'worker' under OHSA, the policies and programs may also be applicable to contractors who provide services at the workplace."
The law requires employers to notify workers of risks of violence from individuals with a history of violent behavior. It includes customers, patients and co-workers if the affected workers are expected to encounter these persons in the course of work and the risk of violence is likely to result in physical injury. The bill also addresses domestic violence that may enter the workplace by requiring employers who are aware of such situations to take "every precaution reasonable" to protect workers.
Bill 168, however, is short on details.
"The legislation is unclear as to what the content of the workplace violence and harassment policies must be," says Landon Young, a partner at Stringer Brisbin Humphrey. "A general statement that the employer is committed to preventing workplace violence and harassment may be sufficient, but it remains to be seen whether the Ministry of Labour will expect the policies to be more specific or to contain certain elements."
While Bill 168 does require employers to conduct a workplace violence (but not harassment) risk assessment, it specifies only that the assessment must take into account workplace-specific circumstances that would be common to similar workplaces. While the bill references further elements required by future regulations, there is no indication such regulations will be forthcoming before the law takes effect.
The bill does stipulate, however, that workplace violence programs at a minimum must include procedures to control the risk identified in the assessment and summon immediate assistance when violence or threats occur. Violence risk assessment programs must include procedures for reporting, investigating and dealing with incidents and complaints.
Employers must also provide workers with information and instructions regarding the policies and programs.
"Unfortunately, Bill 168 does not specify exactly what such information or instructions must involve," Young says.
There is also little guidance as to how far an employer must go to protect employees on learning of a risk of domestic violence in the workplace.
"At a minimum, employers will likely be expected to alert security or fellow employees of the risk of a family member entering the workplace," Young says.
But it is the employer's duty to provide employees with information related to a risk of violence from someone with a history of violent behavior that may raise the most complex practical questions, particularly because the legislation defines workplace violence as the actual, attempted or threatened use of physical force that could injure a worker.
"The definition does not require an intention to exercise such force or to cause injury and could cover the accidental application of force," Young says.
In the face of such a risk, employees may assert a right to refuse work. If the issue cannot be resolved, the employer must call in an MOL inspector to decide if the refusal is valid.
"Inspectors also have broad powers to order employers to take steps to protect worker safety in the event of a refusal," Young says.
Complicating compliance here are privacy considerations. Bill 168 compels employers to provide information, sometimes personal, that is reasonably necessary to protect a worker.
"There may be legislated privacy provisions that apply, and the conflicts that arise could give rise to complicated legal issues," Currie says.
Interestingly, there is no duty to warn employees of the risk of harassment, and the right to refuse work does not extend to workplace harassment.
Yet the very broad definition of workplace harassment could prove troubling to employers. Bill 168 defines it as "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."
Despite the confusion, prohibitions against harassment are not new to Ontario. The Ontario Human Rights Commission's (OHRC) code has long prohibited harassment based on race, ancestry, place of origin, color, ethnic origin, citizenship, creed, age, record of offenses, marital status, family status or disability. But under Bill 168, workplace harassment is not limited to forms of discrimination, including both bullying and the OHRC-named types of harassment.
It follows that employers may now face more bullying or poisoned work environment complaints.
"Employers can find it difficult to respond to such complaints because there can be a fine line between a firm management style and perceived harassment," Young says. "Employers should consider training employees on what constitutes harassment and training managers on how to avoid harassing behavior."
Ontario's adoption of Bill 168 follows similar legislation in Quebec and in the federal sector. Indeed, companies operating in Ontario may do well by looking to the considerable body of jurisprudence developed in Quebec, particularly with regard to the application of the expanded definition of harassment to real-life situations.
The one key difference is that unlike Quebec's law, Bill 168 does not require proof of an effect on or damage to an employee's dignity or psychological or physical integrity as an element of harassment. Ontario does not even require proof that the harassment creates a harmful work environment.
However that may be, boning up on workplace violence and harassment law in Canada is unlikely to be a waste of time, even for companies with operations in provinces other than Ontario and Quebec. Now that Canada's two largest provinces and the federal sector have such laws, many legal and political commentators believe that the remaining provinces and territories will soon follow suit.