Bill 168 took effect June 15, 2010 and amends the Occupational Health & Safety Act in Ontario.
It imposes new, specific obligations on employers with respect to workplace harassment and violence.
Bill 168 defines “workplace harassment” as “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”. “Workplace Violence” refers to “the exercise of physical force by a person against a worker in a workplace that causes, or could cause, physical injury to the worker; and/or an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.” “Workplace Violence” also means a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker.
Ontario employers with more than five (5) employees are now required to prepare and implement policies with respect to workplace harassment and violence.
These policies are required to be posted in conspicuous locations at the workplace and must be reviewed by the employer as often as is necessary, but at least annually. The employer’s obligation to develop a workplace policy must be supplemented by the development and maintenance of a program to implement harassment and workplace violence policies.
An employer is required to ensure that it has procedures in place for the purpose of controlling risks identified by assessments, summoning immediate assistance, reporting incidents, and investigating and dealing with incidents or complaints that arise. This imposes the obligation that an employer conduct violence assessments as often as is necessary to ensure that its workers are adequately protected. The results arising from each assessment carried out by an employer are required to be reported to the company’s joint health and safety committee or the company’s employees.
Employee’s Right to Refuse Work
Pursuant to Bill 168, an employee will have the right to refuse work if workplace violence is likely to endanger them. In the event such a situation arises, the employer is under a positive obligation to investigate work refusals.
If the employer carries out a workplace investigation, and workplace violence continues to endanger a worker who has refused to work, the worker may continue to refuse to work.
Bill 168 also imposes an obligation on the part of the employer to contact the Ministry of Labour for the purpose of arranging for a workplace refusal to be investigated. An inspector will be appointed by the Ministry of Labour for the purpose of determining whether an employee or another person is likely to be endangered in the workplace. Pending an investigation, an employee is required to remain in a safe place close to his or her work station or may be assigned to a reasonable alternative workstation.
Failure to Comply
Employers who fail to comply with their obligations arising under Bill 168 to protect employees against violence and harassment in the workplace may be subject to sanction.
Any individual that contravenes Bill 168 may face a penalty of a fine of up to $25,000.00 and/or up to 12 months imprisonment. Any corporation that contravenes Bill 168 will be subject to a fine of up to $500,000.00.
In light of the severity of these penalties, it is imperative that every employer in Ontario with the obligation to comply with Bill 168 ensures that it develops a formal written policy to address and deal with workplace violence and harassment.
Such a policy would include:
- Training employees on such policies
- Creating policies that address workplace violence and harassment
- Undertaking regular risk assessments to determine the likelihood of workplace violence or harassment
- Providing avenues through which employees may report incidents or risk of workplace violence or harassment
- Developing procedures capable of investigating incidents as they arise
- Disciplining employees for failure to follow policies designed to deal with workplace harassment and violence
- Ensuring that adequate security measures are implemented at the workplace for the purpose of protecting employees from members of the public
- Maintaining detailed records of any incident of workplace violence or harassment
Bill 168 broadens and extends the scope of harassment beyond its prohibition under the Ontario Human Rights Code. Is your business complying?