Bill Ontario s New* Workplace Violence & Harassment Legislation [Ministry of Labour]

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1 Bill Ontario s New* Workplace Violence & Harassment Legislation [Ministry of Labour] Requires Ontario employers to take specific steps to prevent and manage workplace violence and harassment Amends the Occupational Health and Safety Act Applies to all non-profits regardless of size Came into effect June 15, 2010* The short version: Employers are required to perform risk assessments of their workplaces to determine sources of potential workplace violence. Employers must create workplace policies on workplace violence and workplace harassment. Employees must receive training regarding these policies and how to deal with harassing/violent situations in the workplace. Definitions (OHSA s1(1)) Workplace violence is defined as: The exercise of physical force that causes, or could cause, physical injury to the worker An attempt to exercise physical force that could cause physical injury to the worker A statement or behaviour that is reasonably interpreted as a threat to exercise physical force against the worker, that could cause physical injury to the worker Workplace harassment is defined as: Engaging in a course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome NOT based on already prohibited grounds Great Resources for Developing Workplace Violence and Harassment Policies and Programs: What Employers Need to Know (PDF/3.08 MB) A Toolbox (PDF/1.35 MB) Useful resources developed by the Occupational Health and Safety Council of Ontario (OHSCO) Ministry of Labour Risk Assessment Checklist Will help you consider and evaluate the factors that may increase the risks of violence and harassment Bill 168 Requires All Employers to Take (and Document) 5 Specific Steps 1. Risk Assessments 2. Policies

2 3. Violence Program 4. Harassment Program 5. Training And be aware of 3 specific components of Bill 168 that must be addressed in your policies, programs and training: Personal Information re: Persons with History of Violent Behaviour Domestic violence (potential for carry-over into the workplace) Work refusal A colleague reviewer adds: If you work at a municipal museum you should have received tons from the HR departments on this. If you haven t you should check with them as you will probably need to meet your municipal requirements on how this is reported. In our case, policies have been updated, check lists issued, training for supervisors organized, systems put in place for reviewing annually with staff etc etc. Risk Assessments The Risk Assessment is a process where you: identify hazards, analyze or evaluate the risk associated with that hazard, and determine appropriate ways to eliminate or control the hazard Bill 168 requires all employers to conduct a workplace violence risk assessment Findings must be reported to the Joint Health & Safety Committee, safety representative or directly to the workers if no committee/representative exists Assessment must take into consideration circumstances that are both: Common to similar workplaces [TIP: plan risk assessment as a discussion topic at your regional museum network/cluster meeting and/or use the OMA listserv, onmuse-l, to share with colleagues. Document your compliance! Save the minutes or online discussion as documentation (proof) that you have done this.] Specific to the particular workplace Why Conduct a Risk Assessment? To identify potentially hazardous situations, risks, and processes in and around the workplace and other work locations

3 To prevent risks and dangers from arising in the future To identify the steps required to mitigate/eliminate risks in the workplace To monitor and evaluate whether risks are being adequately controlled in the workplace To protect employees and property from harm We are legally required to do so To record findings and to disseminate a remedial plan to prevent risks of harm Violence can happen in any workplace. In our profession, among those most at risk are staff (paid or volunteer) who regularly work alone in a building or work in a space that is first contact for whomever comes in the door but is remote from other staff. But also consider other factors that increase employee risk: Contact with the public Exchange of money or other valuables Delivery of passengers, goods or services Working alone or in small numbers Working late at night Working in community-based settings Mobile workplace (i.e. car) Staying in hotels Document your compliance! According to Bill 168, employers must reassess the risks of workplace violence as often as necessary to ensure the continued protection of workers. Inspectors from the Ministry of Labour (MOL) can order that the assessment and reassessment be in writing (OHSA s. 55.2) MOL Inspectors have the power to order employers to produce written risk assessments and policies, even if less than 5 employees (OHSA s. 55.1) Policies: Violence in the Workplace, Harassment in the Workplace If you have more than one physical space as part of your workplace (e.g. a museum that is part of a municipality, two or more museums administered by a common authority whether or not staff are shared, off-site storage) each location has to have its own risk assessment and policies. Employers must prepare a workplace violence policy and a workplace harassment policy. These policies must be reviewed at least annually and as often as is necessary Document your compliance! These policies must be in written form and posted in a conspicuous location (for employers with more than 5 employees, unless otherwise ordered by an inspector) Violence Program

4 Employers must develop and maintain a program to implement the workplace violence policy that includes measures: To control the risks of violence identified in the assessment (ameliorating and/or correcting risks) e.g. improvements to workplace design and work practices To summon immediate assistance when workplace violence occurs or is likely to occur (what if it does happen?) e.g. every area of the workplace has access to a mechanism to call for help For workers to report incidents or threats of violence (process for reporting) e.g. provide education and training to employees; provide contact person(s) For employers to investigate and address incidents or complaints of workplace violence (process for investigating) Document your compliance! Have forms. Keep records. Additional Feature of Bill 168 Violent Incidents in the Workplace Requires employers to report and provide written notice of a workplace violence incident to the Joint Health and Safety Committee, health and safety representative and trade union within 4 days of occurrence (OHSA, s 52(1)) MOL Inspector may require notification to the Minister of Labour s Director of Occupational Health & Safety Harassment Program Employers must develop and maintain a program to implement the workplace harassment policy that includes measures: For workers to report incidents of harassment e.g. provide education and training to employees; provide contact person(s) For employers to investigate and address incidents and complaints of workplace harassment e.g. e.g. provide education and training to employees Training Employers are required to provide workers with information and instruction on the contents of the workplace violence and harassment policies and programs and on how to report incidents (as covered in policies) and the process for investigating and addressing incidents or complaints of workplace violence or harassment (as covered in policies). [TIP: Sharing this information in writing and as training provides an excellent opportunity to ensure all employees, paid and unpaid, understand your organization s commitment to and standards for ensuring a healthy and safe workplace]. Train employees: on what to do in an emergency situation on how to summon assistance on what to do if robbed/attacked

5 on emergency numbers on techniques to defuse potentially violent situations to use walkie-talkies/portable phones if moving around a large worksite on their own not to enter any situation where they feel unsafe to plan escape routes to set up a buddy system to recognize, respond and report potentially violent situations on other precautions to eliminate risks of violence Identify the roles and responsibilities of employees and management Document your compliance! Maintain training records e.g. dated staff meeting agenda, minutes with names of those who attended; circulate written information prior to posting and have each person sign document in your presence that it has been read and understood You must address these specific issues in your policies, programs, and training: Domestic Violence Employers must take every reasonable precaution to protect workers if employers are aware, or ought to be aware, that staff is likely to suffer physical injury in the workplace as a result of domestic violence. This issue created a ripple of unease at the workshop on Bill 168 for non-profits we attended. Employers are not responsible for dealing with domestic violence. They are responsible for considering the safety of everyone in the workplace which includes, as part of your risk assessment, policy, program and training, consideration of the risk that domestic violence could carry over to your place of work. [TIP: Everyone in the room was aware of instances in the sector, schools, hospitals, local government etc. where this has occurred. Find out how these institutions are addressing the issue in their Workplace Violence policy.] Sharing of Personal Information re: Persons with History of Violent Behaviour An employer has a duty to provide personal information to other staff (paid or volunteer) regarding a risk of violence from another staff member with a history of violent behaviour if: A worker is expected to encounter a person with a history of violent behaviour AND the worker is at risk of physical injury Need only disclose to other staff as much information as necessary to protect the worker from physical injury

6 However... employers are not required by this bill to do background checks... they are only required to protect employees if they do already have or come across such knowledge. Work Refusals [Bill 168 (OHSA s. 43) has expanded employee protection from earlier legislation on work refusal] Previously, work refusal legislation covered: Certain workers who have a limited or conditional right to refuse work (i.e. health-care workers, police, fire-fighters). This right is limited when: The work and/or workplace is a normal (stated) condition of employment Refusal would directly endanger the life, health or safety of another person Teachers work refusal provisions do not apply where life, health or safety of a pupil is in imminent jeopardy (Reg. 857) This component of Bill 168 addresses the employee s right to refuse or to stop work where health or safety is in danger and provides an expanded right of work refusals which: Includes right to refuse work where employee has reason to believe that workplace violence is likely to endanger him/herself Removes requirement for worker to remain at their immediate work location until the investigation is complete (remain in safe place) [TIP: For workplaces with unionized staff, details can vary according to collective bargaining and you will need to be aware of what applies.] Potentially Stiff Penalties for an Employer in Violation of Bill 168 (OHSA s.66(1) and 66(2)) The discharge of an employer s due diligence obligations will demand that they have complied fully with the legislative provisions Violations of OHS Legislation can result in significant fines: Maximum fine of $500,000 for corporations in contravention of the Act Individual fines: personal liability of supervisors, managers, directors, boards of directors (maximum $25,000 or no more than 12 months in jail) Preparing Compliant Policies Use the Occupational Health and Safety Council of Ontario (OHSCO) Toolbox [link in box on first page of this tipsheet] Secure management commitment (e.g. municipality, board, historical society i.e. whoever the employer is whether volunteer or paid) Involve management & staff (if your site has this distinction) Include clear definitions of violence and harassment

7 Provide examples of unacceptable behaviour Indicate consequences Ensure no reprisals (for reporting) Commit to provide support services to victims Provide information/templates on: how to report, investigation of complaints; encourage complaints; procedures for investigating and responding to complaints Commit to monitor & review (dated) policy regularly HR Council for the Nonprofit Sector recommends: Don t bundle these new policies in with your existing Human Resource policy but have separate Workplace Violence Policy & Workplace Harassment Policy to ensure that your site is seen by the Ministry of Labour to be compliant The Ontario Museum Association thanks peer reviewers Todd Fleet, Canadian Bushplane Heritage Centre; Katherine McCracken, Guelph Museums and Andrew Meyer, Municipality of Strathroy-Caradoc for their assistance in making this tipsheet more useful to their colleagues. Thanks particularly to Kate McAuley of Toronto s First Post Office for preparing Implementing Bill 168 Case Study: Toronto s First Post Office and to the HR Council for the Non-Profit Sector whose excellent seminar provided just what was needed to inform our museum sector.