BILL 168 - Is Your Company Ready?

Workplace violence and bullying is not a new phenomenon. Instances of workplace violence and bullying occur more frequently than many would like to believe. A 2004 Statistics Canada survey, Criminal Victimization in the Workplace, found that 17% of violent incidents in Canada occur at the workplace. That 17% represents approximately 356,000 separate incidents of workplace violence across Canada in one twelve month period (and they note that the extent of workforce violence may be underestimated). Between April 2008 and March 2009 in Ontario alone, inspectors made 417 field visits and issued 351 orders related to violence in the workplace under the existing Occupational Health & Safety Act (OHSA).

Examples of extreme cases of workplace violence with tragic results are reported in the media. You may recall the Ottawa Transport Company (OC Transpo) case in 1999 where 4 employees were shot and killed by a former coworker; the 2005 Dupont case, where nurse Lori Dupont was stabbed to death at the Hospital Hotel Dieu in Windsor by former partner, Doctor Marc Daniel; or more recently (February 2010), the stabbing death of group home manager Larisa Belekova by one of the residents. Google 'workplace violence' and you will find any number of incidents posted. How many more are there that we don't hear about?

In April 2009, the Ontario government introduced Bill 168 An Act to amend the Occupational Health & Safety Act with respect to violence and harassment in the workplace and other matters (sic), in the legislature. The Bill went through third reading on December 9, 2009 and received Royal Assent on December 15, 2009. The Act comes into effect on June 15, 2010, and ALL Ontario workplaces covered by the Occupational Health and Safety Act MUST COMPLY by that date.

Bill 168 defines workplace violence and workplace harassment, outlines employer obligations, and redefines an employee's right to refuse unsafe work. The bill also recognizes that domestic violence can have a spill over effect in the workplace.

With Bill 168, the Ontario government joins the federal government and several other provinces (including BC, Alberta and Nova Scotia) in enacting legislation to protect their citizens from workplace violence.

Definitions
Under Bill 168, workplace violence means:

• The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
• An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
• 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.

And workplace harassment means:

• 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

It is interesting to note that the definition of workplace harassment under Bill 168 is the same as that under the Ontario Human Rights Code (OHRC), but it actually offers broader protection for employees, as harassment as defined is not limited only to the OHRC prohibited grounds.

Employer Obligations
Every employer in Ontario subject to the Occupational Health & Safety Act must be compliant by June 15, 2010:

• Designate a person to act as Workplace Coordinator with respect to Workplace Harassment & Workplace Violence Program.
• Prepare & post Workplace Violence & Workplace Harassment policies. Policies must be posted in a conspicuous place and must be reviewed regularly (at least annually).
• Assess risks of violence in the workplace. The assessment must take into account the nature and type of work done, risks that would be common in similar workplaces and risks specific to your organization. A copy of the completed risk assessment must be provided to the organization's Joint Health and Safety Committee or Safety Representative, or posted for all employees.
• Implement & maintain a Workplace Violence Prevention Program. The program must be communicated to all employees and include measures to control risk, provide instruction for employees on how to report incidents, how to summon help, and how to deal with incidents of violence, threats and complaints. The program must include training for employees to understand the policy, identify targets, reduce risks and how to make a complaint; with additional training for Managers and Supervisors on how to investigate, respond, and intervene.
• Address domestic violence and take reasonable precautions where the organization is aware (or ought to be aware) that domestic violence is likely to expose a worker to risk of physical injury in the workplace.
• Disclose information about persons with a history of violence to any worker who may be likely to encounter that person in the course of their work. Note - this is not limited simply to other workers - it can include clients, customers, vendors, and others.

What should you do NOW?

With the deadline of June 15th fast approaching, it is important to start now to develop and implement the policies and program. You can start by appointing a workplace coordinator to manage the development and implementation of the program, policies and required training. We suggest that this individual should be in a decision making role within the organization. Then:

• Create Workplace Violence and Harassment policies. If you have existing policies, revise them as necessary to be compliant with the Bill.
• Review and update existing discipline and other policies to ensure they are consistent with the violence and harassment policies.
• Source or develop a risk assessment tool and conduct a risk assessment of the workplace. If your organization has multiple work places, a risk assessment should be done for each one.
• Address any existing or potential issues identified in the risk assessment(s).
• Update or develop new complaint and incident reporting procedures. Ensure that you have effective early resolution processes in place.
• Develop tools and procedures to comply with employer disclosure obligations for employees who may come into contact with individuals with a history of violence. Two important considerations:
• How to balance a person's right to privacy with the requirement to disclose information, and
• How & where does the organization find out whether a person has a history of violence? The RCMP recently changed the rules about what kind of information could be released for criminal background checks.
• Develop and facilitate appropriate training and education for various employee groups.
• Create a record keeping process to track communication of policies, program, and training; to document and track assessments; and to register complaints, investigations and resolutions.
• If your workplace is unionized, review the terms of any collective agreements in place, to ensure there are no conflicts with the requirements of the Bill. You may wish to communicate with and involve union representatives with respect to any policy changes that may be required in the workplace.

Resources and Information

While the Ministry of Labour is developing tools and resources to support employers and workers in understanding and implementing the requirements of Bill 168, there are resources, guides and templates available now.

It isn't necessary to reinvent the wheel in creating the program and policies required to comply with Bill 168, BUT, it is important to remember that EVERY WORKPLACE IS DIFFERENT. A COOKIE CUTTER APPROACH WON'T WORK. You should be cognizant of the specific conditions that apply in your own workplace, in your own industry, and make sure that any templates or samples you decide to use (even if just as guidelines), are relevant to, or tailored to your specific circumstances.

Lastly, it's not just about the legal requirement here - it's about heightened sensitivity and awareness to the possibility of workplace violence happening in your workplace. The question for you, and your organization, now is: How do we manage this on a preventative and proactive basis, rather than waiting for the unthinkable to happen?

We have listed some sources for you below. You may also have access to information, guidance and advice (policy & program design, risk assessment, training) through your legal firm, external HR Consultant, Health and Safety Consultant, or EAP provider.

Written & submitted by:
Bridget Carter, Sapphire Consulting
www.sapphireconsulting.biz
February 22, 2010

Resources (updated 2012):
Amended Occupational Health & Safety Act available at:
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90o01_e.htm

Developing Workplace Violence and Harassment Policies and Programs: What Employers Need to Know
Toolkit from the Ontario Ministry of Labour:
http://www.labour.gov.on.ca/english/hs/pubs/wvps_guide/index.php

Canadian Centre for Occupational Health & Safety
http://www.ccohs.ca/oshanswers/psychosocial/violence.html

Information Sources:

Part XX of the Canada Occupational Health and Safety Regulations - Violence Prevention in the Work Place prescribes steps that federally-regulated employers must implement in their work place to protect employees against violence. Available at: www.hrsdc.gc.ca/eng/labour/.../health_safety/violence.shtml

Ministry of Labour bulletin - Protecting People at Work - available at: http://www.news.ontario.ca/mol/en/2009/12/protecting-people-at-work.html

Statistics Canada - Criminal Victimization in the Workplace -,2004. Available at: www.statcan.gc.ca/pub/85f0033m/85f0033m2007013-eng.pdf