December 15, 2009
On December 15, 2009 Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) received Royal Assent. Bill 168 will be in effect on June 15, 2010.
Bill 168 amends the Occupational Health and Safety Act to address workplace harassment and workplace violence (including a threat to exercise physical force). This is accomplished by creating new terms for workplace harassment and workplace violence, imposing new duties with respect to workplace harassment, workplace violence and domestic violence and extending the right to refuse work due to workplace violence.
The following is an overview of Bill 168.
Workplace harassment and workplace violence are defined in the act. 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.
Several observations can be made about the meaning of workplace harassment:
- Since a person must engage “in a course of” comment or conduct, workplace harassment is not a single incident.
- Workplace harassment may occur by “comment or conduct”, thus words or actions will qualify as workplace harassment.
- Members of the public, clients or visitors are not protected against the harassment. Only a worker is protected against workplace harassment.
- Comment or conduct outside of the workplace will not be workplace harassment.
- The comment or conduct must be vexatious and unwelcome. Vexatious means without reasonable or probable cause or excuse, annoying, distressing, or agitating.
- Whether the comment or conduct is unwelcome will be determined based upon an objective standard and require foresight.
- The perpetrator of the workplace harassment does not have to be a worker.
Workplace violence means the exercise of physical force, the attempt to exercise physical force and a statement or behaviour that it is reasonable to interpret as a threat to exercise physical force. Several observations can also be made of the meaning of workplace violence:
- Workplace violence may be a single incident of the use of physical force, the attempt to use physical force or threat to use physical force.
- The exercise of physical force must occur in the workplace.
- The attempt or threat must be with respect to physical force in the workplace.
- Members of the public, clients or visitors are not protected against the violence. Only a worker is protected against workplace violence.
- The exercise of physical force or an attempt to exercise physical force outside of the workplace will not be workplace violence.
- Physical injury does not have to occur.
- The perpetrator of the workplace violence does not have to be a worker.
There are several new duties imposed upon employers. This includes:
- If the workplace has more than 5 employees or ordered by an inspector, an employer shall prepare a policy with respect to workplace violence, review it at least annually, post it and develop and maintain a program to implement the policy.
- If the workplace has more than 5 employees or ordered by an inspector, prepare a policy with respect to workplace harassment, review it at least annually, post it and develop and maintain a program to implement the policy.
- The employer shall assess the risk of workplace violence and advise the health and safety committee, the health and safety or advise the workers of assessment. The employer shall conduct a reassessment as often as is necessary. The assessment shall be in written form if ordered.
- If the assessment is in writing, the employer shall provide a copy to the health and safety committee, to the health and safety representative or provide a copy to the workers on request.
- The employer shall take every precaution reasonable in the circumstances for the protection of the worker if an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace.
- An employer shall provide a worker with information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment and workplace violence.
- An employer shall provide a worker with any other prescribed information or instruction with respect to workplace harassment and workplace violence.
- In section 25(2)(a) of the Occupational Health and Safety Act , the employer has the duty to provide information, instruction and supervision to a worker to protect the health or safety of the worker. In section 27(2)(a) of the Occupational Health and Safety Act the supervisor has the duty to advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware. Bill 168 requires an employer and supervisor to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if the worker can be expected to encounter that person in the course of his or her work and the risk of workplace violence is likely to expose the worker to physical injury.
- An incident of workplace violence that does not result in death or a critical injury must be reported within 4 days.
Right to Refuse and Stop Work
Bill 168 amends the Occupational Health and Safety Act so that a worker may refuse to work or do particular work where he or she has reason to believe that workplace violence is likely to endanger himself or herself.
The Legislature may also pass regulations prescribing elements of a policy required under the Occupational Health and Safety Act , restrictions, prohibitions or conditions with respect to workers or workplaces relating to the risk of workplace violence, requiring an employer to designate a person in a workplace to act as a workplace co-ordinator with respect to workplace violence and workplace harassment and prescribing the functions and duties of the co-ordinator.