All Ontario Employers need to take stock of important new changes to the regulation of violence and harassment in the workplace.

On December 9, 2009 Bill 168, "An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters," passed third and final reading in the Ontario Legislature. The bill is expected to receive royal assent and should come into force in June, 2010.

New Requirements for Employers:

The bill will require employers to develop written policies on workplace violence and harassment, as well as programs to implement and maintain those policies and to address any incidents which do arise. Employers must review the written policies "as often as necessary", or at least once every year. Copies of the policies are to be posted in a conspicuous place in the workplace.

Employers will also be required to conduct an assessment of the risk of violence in the workplace, particularly as may arise from the nature of the workplace, the type of work or the conditions of work. The employer must then advise the joint health and safety committee of the results of the assessment. If there is no joint health and safety committee, the employer must advise the workers generally. The employer is to perform a reassessment of the risk of violence "as often as necessary".

Under Bill 186, employers will also have obligations with respect to domestic violence impacting the workplace. The bill will require employers who are aware, or who reasonably should be aware, of domestic violence which may result in injury to a worker in the workplace to take "every precaution reasonable in the circumstances for the protection of the worker". This may entail an ongoing obligation on employers to monitor potentially problematic domestic relationships in the workplace, and to intervene where necessary.

Employers may also be required to disclose to workers information about a person in the workplace with "a history of violent behaviour" if the worker could be expected to encounter the person in his/her work and if there is a risk of violence likely to expose the worker to physical injury. This new requirement may prove particularly onerous to employers, who will now have to balance the privacy concerns of persons deemed to have "a history of violent behaviour" (a term which the bill leaves undefined) with ongoing disclosure obligations to workers.

Redefining "Violence" and "Harassment":

In addition to creating new obligations for employers, the bill significantly expands the scope of "workplace violence" by including threats, as well as acts, of violence in the definition. "Workplace violence" is now defined to mean:

(a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,

(b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,

(c) a statement or behaviour that it 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.

With respect to "workplace harassment", this is now defined by Bill 168 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". It should be noted that this definition of harassment is considerably broader in scope than that found in the Ontario Human Rights Code (which restricts harassment to various prohibited grounds such as race, place of origin, creed, sex, and disability).

It is clear that employers' obligations with respect to violence and harassment in the workplace will expand considerably with the coming into force of Bill 186.

For more information on compliance with these changes, you can visit our employment and labour website here.  You can also reach the writer at sean.morrison@gowlings.com and our Manufacturing and Distribution website at http://www.gowlings.com/industry/md.asp   Gowlings trains management on the legislative requirements of Bill 168 and how to comply. We can also develop and deliver a customized training program that helps your workers and supervisors become familiar and comply with your organization's workplace violence and harassment policy and program.