By David Whitten – Whitten Lublin LLP
Beginning June 15, Bill 168 requires that all Ontario employers have policies in place to protect their employees from workplace violence and harassment.
The Bill amends Ontario’s Occupational Health and Safety Act (OHSA) by designating workplace violence and harassment as health and safety hazards. It’s a direct response to recent acts of workplace violence, including Lori Dupont’s murder at a Windsor hospital at the hands of her boyfriend in 2005 and Pierre Lebrun’s shooting rampage at OC Transpo in 1999.
Previously, the OHSA required employers to take “all reasonable precautions” to protect employees. However, in the absence of a specific legislative definition of “reasonable precautions”, charges were rarely laid. Bill 168 now expressly imposes obligations on employers and employees to protect against workplace violence and harassment.
By definition, workplace violence and workplace harassment is the actual exercise of physical force; an attempt to exercise physical force; or a statement or behaviour that can be reasonably viewed as a threat of physical force to cause physical injury. Unfortunately, the terms “physical force” and “physical injury” are undefined, leaving employer obligations unclear.
More significantly, the definition of workplace harassment has been borrowed from the Human Rights Code, where even perceived mistreatment can form the basis of a lawsuit or human rights complaint. Since harassment is often viewed in the eyes of the beholder, a tough or assertive boss could easily be seen as a personal harasser. The concern is that employees will use these new definitions to support constructed dismissal claims or complaints to the Ministry of Labour, based on little more than legitimate performance management.
By far the most alarming requirement is that employers must now provide information to all employees, including personal information, about a colleague’s history of violence. The legislation doesn’t outline what should be considered violent behaviour or an employer’s obligations to inquire into a person’s history. It’s also unclear how much information must be divulged to fulfil this requirement while balancing the importance of maintaining that person’s privacy rights.
Actions all employers must take to be compliant
The following are the five steps that employers must take to ensure Bill 168 compliance:
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