Employer Obligations Under Bill 168: Workplace Harassment and Workplace Violence

Bill 168, which comes into force on June 15, 2010 will have a significant impact upon provincially-regulated employers in Ontario. Bill 168 incorporates two new concepts into the Occupational Health and Safety Act ("OHSA"):

1)      Workplace harassment - 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". 

This definition is similar to the definition of harassment in the Ontario Human Rights Code; however the OHSA concept is broader because it is not confined to harassment on the basis of a prohibited ground of discrimination such as race, gender or disability.

2)      Workplace violence - Defined as "(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".

It is important to note that the definition of workplace violence captures threats made against a worker in a workplace.

Overview of Obligations

Bill 168 requires employers to take a number of steps by June 15, 2010 in order to be compliant, namely:

• Assess the risks of workplace violence and report the results of such assessment to the joint health and safety committee, the health and safety representative or the workers (as applicable);
• Prepare and post written policies respecting workplace violence and workplace harassment;
• Develop and maintain a program to implement the  workplace violence policy, including measures and procedures respecting the following:

a)      Controlling risks likely to expose a worker to physical injury,

b)      Summoning immediate assistance when workplace violence occurs,

c)      Reporting incidents of workplace violence to the employer or supervisor, and

d)      Investigating and dealing with incidents or complaints of workplace violence;

• Develop and maintain a program to implement the employer's workplace harassment policy, which must:

a)      Include measures and procedures for workers to report incidents of workplace harassment to the employer or a supervisor, and

b)      Set out how the employer will investigate and deal with incidents and complaints of workplace harassment;

• Provide workers with training and information respecting the employer's policies and programs;

In addition, employers have ongoing obligations to:

• Review policies at least annually, and reassess the risks of workplace violence as often as is necessary to ensure that the employer's policies and programs continue to protect workers;
• Take every precaution reasonable in the circumstances to protect workers from "domestic violence", if the employer becomes aware or ought reasonably to be aware that domestic violence may occur in the workplace and would likely expose a worker to physical injury; and
• Provide a worker with information about persons with a history of violent behaviour, if the worker could be expected to encounter such person(s) and there is a risk of workplace violence that could expose the worker to physical injury. This includes providing personal information about such person(s), but no more personal information than is reasonably necessary to protect the worker from physical injury.

As indicated from the above list of obligations, there is a substantial amount of work that an employer must do to ensure that it is compliant with the law as of June 15, 2010.

Bill 168 raises a number of difficult issues for employers, particularly with regard to the disclosure of information to employees and reporting obligations following an incident of workplace harassment or violence. If you require assistance or legal advice in connection with your obligations under Bill 168, please contact:

David Elenbaas, tel: 416.865.7232; email: david.elenbaas@mcmillan.ca or Dave McKechnie, tel: 416.865.7051; email: dave.mckechnie@mcmillan.ca.

McMillan LLP