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Newsletter Article

Workplace Violence and Harassment Laws - What Employers Need to Know

Published: 07/16/2010

By Laurie Jessome, Luke Woolford

Many employers will be aware that Ontario recently made significant amendments to its Occupational Health and Safety Act (OHSA) relating to workplace violence and harassment. However, what may be less widely known is that the new amendments (which came into force on June 15, 2010) do not simply vary the treatment of incidents of workplace violence and harassment, but also impose positive ongoing duties on employers to conduct risk assessments and enact policies and programs to prevent incidents of workplace violence. Non-compliance with these duties can lead to fines for employers of up to $500,000 or up to 23 months in jail for individuals.

Defining the Problem

The amendments to the OHSA introduce clear definitions of what kind of behaviour will constitute workplace violence and harassment:

Workplace violence is defined as the exercise (or attempted exercise) of physical force against a worker in a workplace that causes or could cause physical injury to the worker. The definition also covers statements or behaviour that could be interpreted as a threats to exercise such force.
Workplace harrassement is defined 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.

What Must Employers Do?

The following are the key obligations of employers under the new legislation.

Policy Development

Employers must develop policies (or revise existing policies) with respect to workplace harassment and violence. These policies must be placed in a conspicuous place in the workplace, and must be reviewed and, as required, updated by the employer no less than annually.

Risk Assessment

Employers must complete a risk assessment of their work environments for workplace violence. This assessment must consider what violence might arise, having regard to the nature of the workplace, the type of work performed, or the physical environment in which the workers operate. It must factor in circumstances that would be common to similar workplaces and those that are specific to the employer's workplace in particular. Employers must provide the results of the assessment to their joint health and safety committee or to a health and safety representative (or if there is no committee or health and safety representative, they must advise the workers of the results of the assessment). Employers must reassess the risk of violence on an ongoing basis.

Implementation of Workplace Violence and Harassment Programs

Following development of the policies, employers must implement the policies by developing and maintaining workplace violence and harassment programs.

The programs must include measures and procedures for workers to report incidents of workplace violence or harassment to the employer or supervisor and must set out how the employer will investigate and deal with incidents and complaints of workplace violence harassment. In addition, workplace violence programs must include measures and procedures to control the risks identified in the workplace assessment and for summoning immediate assistance when workplace violence occurs or is likely to occur.

Other Requirements

The amendments to OHSA also stipulate that employers who become aware, or who ought reasonably to be aware, of a risk of an incident of domestic violence in the workplace must take every reasonable precaution for the protection of its workers in those circumstances. Such precautions may include increased security measures, changing passcodes or other access requirements and creating a “buddy system” for affected workers as they walk to their cars or wait for public transit.

Employers have a duty to provide each employee with information and instruction regarding the workplace violence and harassment policies. In addition, employers now have an obligation to advise their workers of any risk of workplace violence arising from a person in the workplace who has a history of violent behaviour. It should be noted that employers must be mindful of their obligations regarding privacy in the workplace and their duties under the Ontario Human Rights Code when assessing whether or not such disclosure is required under OHSA. For this reason, we recommend consulting with legal counsel before disclosing personal information regarding employees, contractors, clients or other individuals in your workplace.