OPSEU Guide to Bill 168 regarding workplace violence and harassment
Overview of Bill 168
Workplace violence and workplace harassment are now
recognized in the Occupational Health and Safety Act (OHSA or the Act).
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amendments become law June 15, 2010.
New Definitions in Occupational Health
and Safety 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;
workplace violence means,
(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.
Perform an assessment of the risks of workplace violence to workers and
provide the results of the assessment to the Joint Health and Safety
Committee (JHSC) or Health and Safety representative
Develop and maintain a workplace violence program
Provide information and instruction to workers on the content of the
workplace violence and the workplace harassment policies and programs
Both policies must be reviewed at
least annually. The employer is required to reassess the risks of
violence “as often as is necessary” to ensure the policy and program
continue to protect workers.
workplace violence program must contain:
Measures and procedures for summoning assistance when workplace violence
occurs or is likely to occur
Measures and procedures for reporting workplace violence
out how the employer will investigate and deal with incidents or complaints
of workplace violence
The workplace harassment program must
how the employer will investigate and deal with incidents and complaints
legislation requires employers to put measures in place to protect a worker
from domestic violence that may enter the workplace. If an employer becomes
aware of the threat of domestic violence, he/she will be expected to develop
a safety plan to protect the worker(s) at risk. The safety plan might
include things such as increased security measures, alternate work
arrangements and/or an emergency communications plan.
the new section of the Act:
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, the employer shall take every precaution reasonable in the
circumstances for the protection of the worker.
amendments identify the employer’s obligation to warn workers about the
threat of violence from individuals (“violence from a person”). This
includes violence from any person that the worker can be expected to
encounter in the course of their work – patients, doctors, families,
clients, customers, residents, inmates, and other workers – if there is a
risk that the worker will be exposed to physical injury. Employers and
supervisors must also not disclose more information than is reasonably
necessary for the protection of a worker from physical injury.
some sort of flagging system so that all workers who need to know about the
hazard learn about it in advance. Note that duties under OHSA trump those of
other legislation (See OHSA s.2(2): “Despite anything in any general or
special Act, the provisions of this Act and the regulations prevail.”). The
employer cannot refuse to communicate information about the hazard of
violence by hiding behind privacy legislation.
the new section of the Act:
An employer’s duty to provide information to a worker under clause 25(2)(a)
and a supervisor’s duty to advise a worker under clause 27(2)(a) include the
duty to provide information, including personal information, related to a
risk of workplace violence from a person with a history of violent behaviour
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.
No employer or supervisor shall disclose more personal information in the
circumstances described in subsection (3) than is reasonably necessary to
protect the worker from physical injury.
clearly have the right to refuse work if they have reason to believe
workplace violence is likely to endanger them. The limited right to refuse
for certain workers described in OHSA s.43(2), continues. There is no right
to refuse because of harassment, unless you believe the harassment is likely
to become physical violence.
168 Does Not Do
It does not indicate how Ministry of
Labour (MOL) inspectors might respond to dangerous situations such as
working alone in workplaces such as a group home or a liquor store,
travelling late at night, or travelling alone to isolated areas, how
risk assessments are to be performed or whether MOL inspectors will
review risk assessments for quality.
It does not specifically address
staffing levels or staff qualifications which may be a source of danger.
Only employers covered by the
Regulation for Health Care and Residential Facilities are specifically
obliged to consult with JHSCs or Health and Safety reps while developing
policies, procedures and measures and while developing health and safety
training under the amendments. While consultation is not specifically
required in other regulations (such as the Regulation for Industrial
Establishments), JHSCs and Health and Safety representatives should
insist that employers consult with them throughout the process of
developing the workplace violence program.
It does not describe how training on
the policies and programs is to be done; nor does it indicate how
frequently it should be offered or reassessed.
MOL inspectors will not be able to
take much action around workplace harassment, other than to review
whether an employer has developed a policy, a procedure for workers to
report incidents of harassment, and a procedure for employers to
investigate and deal with reports. Although inspectors will not
investigate specific complaints of harassment, they can write orders if
employers have not complied with the legislation. Workers can utilize
their JHSCs, health and safety representatives, local union
representatives, and local union processes such as labour management
committees and grievances to ensure that workplace harassment protection
meets legal requirements and adequately protects workers.
Implement a Workplace Violence Policy and Program
The steps to
implement the obligations in Bill 168 follow the same approach as with any
health and safety hazard – identify, assess and control. And as with any
control program, there is an additional step to assess whether the program
is effective. The steps below are not described in the legislation, but they
may be helpful as a way to organize what is required in your workplaces.
ultimately, developing and implementing the workplace violence policy and
program is an employer responsibility, the JHSC or Health and Safety
representative should be involved every step of the way. Strive to be
consulted, insert yourself into processes such as the risk assessment and
results, identify gaps and provide recommendations to improve measures and
procedures, policy, and training.
information in your workplace. Depending on the size and nature of your
workplace, you may use some or all of the sources below:
review incident reports and WSIB
conduct a staff survey about
experiences and perceptions of workplace violence
review JHSC minutes for trends and
conduct focus groups of workers from
different areas of workplace to start to identify highest risk areas
review security logs, Code White
reports, workplace inspection reports
review EAP usage
together existing policies and procedures which are related to workplace
violence issues and review them – are they up-to-date, do they overlap, are
they in compliance with the new legislation, are there noticeable gaps?
Some of the
activities in Step 1 are components of the Risk Assessment. However, in
addition to those activities, it is necessary to perform additional
assessment can be divided into two parts:
assess the physical environment of
the workplace: This means looking at things such as lighting, furniture,
tools and equipment that could be used as weapons, parking lots,
facility entrances and exits, blind spots in the building, areas where
workers work alone, public service counters, location of cash and
medications, stairwells, washrooms, meeting rooms, and access to
telephones or other communication devices.
assess work practices and nature of
work: This assessment should consider work practices such as working
alone, whether workers in the field have a way of communicating with a
supervisor in an emergency, whether a client population has a history of
violence, how cash is managed in a retail environment, whether clients
or the public has physical access to workers, if potentially violent
persons are transported by workers, if an assessment for violence is
part of the regular assessment process for new patients/clients, whether
these assessments are communicated between staff and upon transfer, etc.
risk assessment is the most straightforward part of the assessment process.
Assessing work practices and nature of work is often more complicated for
many reasons. For example in health care or social services workplaces,
workers and supervisors are often reluctant to be seen as labelling
patients/clients as dangerous for fear of stigmatizing them further. In
these sectors violence can be both intentional and “non-intentional,” so it
is often helpful to focus on the “impact” of the violence rather than on
“intent.” In some workplaces, workers and supervisors may have come to
accept a certain level of violence as “just part of the job” making it
difficult to assess risk. It is important to remember that a workplace that
is safer for workers is also safer for clients or patients, so striving for
less violence in the workplace benefits everyone. In most places, people
get used to doing things in a certain way and putting in place new measures
in response to the assessment may upset entrenched practices. Also,
employers may be reluctant to fully assess risks, because they are worried
that they may have to increase staffing levels or make physical changes to
workplaces, work practices and the nature of work are so different from one
workplace to the next, it is important to use an assessment tool that
captures the kind of work and the working environment in your workplace.
Employers and JHSCs may need to seek assistance when looking for the best
tool for their workplace. (See the resources cited at the end of document)
your workplace does not already have a workplace violence policy, creating
one indicates your employer’s commitment to protecting staff from the
hazard. And it is now the law. If your workplace does have a policy, review
it and update if necessary to comply with Bill 168.
Procedures: Creating measures and procedures to control the risks identified
in Step 2 will create the backbone of your program. For each identified
risk, there must be a measure and/or a procedure to reduce risk. Your
workplace may have many measures and procedures in place, or you may find
very few. You may be able to build upon some existing control measures.
measures should control risks associated with:
physical aspects of the workplace
such as installing cameras, locking doors, removing objects that could
be used as weapons
specific jobs such as working alone
in clients’ homes
specific situations such as
transporting clients to appointments
there must be a systematic method of
assessing all new patients/clients or residents in healthcare and social
services environments for the hazard of violence and designing specific
measures and procedures to eliminate or reduce these risks.
must also include:
measures and procedures for summoning
measures and procedures for workers
to report incidents including threats
how the employer will investigate and
address incidents and threats
the program which includes the policy, measures and procedures
It may be
necessary to make difficult decisions about which measures and procedures
will be implemented first. It may also be necessary to implement interim
measures and procedures in some cases.
Risk Assessment step, it may be valuable to prioritize risks as high, medium
or low to assist with later decisions about implementation. For example, a
high risk area might be defined as an area where the potential for a violent
incident is high and the outcome of the incident is severe.
It will be
useful if there are numerous risks to be addressed, to create an Action Plan
tool to indicate responsibilities, timeframes and progress for each control
and Instruction to Workers
requires the employer to provide information and instruction on the policy
and the program to all employees, including managers and supervisors.
Workers in areas requiring specific measures and procedures must be
instructed on those. For example, if an emergency response procedure is used
in your workplace, all those affected by it – those who respond and those
who might have to call for emergency assistance – should receive instruction
about the process.
in workplaces covered by the Regulation for Health Care and Residential
Facilities, the employer is legally required to consult with the JHSC or
Health and Safety representative when developing, establishing and providing
health and safety training. This requirement applies to workplace violence
and harassment training as well.
legislation requires the employer to review the policy annually and to
reassess the risks of workplace violence "as often as necessary” to ensure
the policy and program is protecting workers.
The JHSC or
Health and Safety representative should continually assess the workplace
violence program by reviewing incident reports, WSIB reports, and by
investigating incidents of workplace violence.
If there is
a change in the workplace such as opening or closing a work area, a change
to client/resident/patient/customer populations, a new shift added, or a
change to staffing levels or mix, the risk assessment to the affected areas
should be repeated. Existing control measures and procedures should be
re-evaluated in light of change to the risk assessment.
Ministry of Labour guide to Bill 168:
OSACH Fast Facts on Workplace Violence, Bullying, and