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By Henry Dinsdale and Jeff Goodman Safer workplaces Ontario pushes for anti-violence laws O ntario is among a hand- ful of Canadian jurisdic- tions without workplace violence and harass- ment included in their occupational health and safety legisla- tion. However, proposed OHS legisla- tion in Ontario could force employers to address domestic violence, work- place violence, and harassment in the workplace. The changes may also require employers to provide personal information to workers and extend the right to refuse work. These new obligations are part of bill 168, the occupational health and safety amendment act (violence and harass- ment in the workplace) 2009, which received first reading in April. If passed, bill 168 would make Ontario the first jurisdiction in Canada to require employ- ers to address domestic violence when they become aware, or ought reason- ably to be aware, of a domestic violence risk. However, domestic violence is not defined in the bill and, arguably, could include physical threats from any person who is not a stranger or co-worker. Importantly, workplace violence is key to understanding the proposed amendments. Workplace violence is defined as the actual or attempted exer- cise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the work- er. Unlike other Canadian jurisdictions, bill 168 does not include threats in the definition of workplace violence. The proposed changes also define "workplace harassment." It is "a course of vexatious conduct or comment against a worker in a workplace that is known or ought reasonably to be known to be unwelcome." If the Occupational Health and Safety Act is amended to include harassment, Ontario will join Saskatchewan and Manitoba as prov- inces that have extended occupational health and safety legislation to include non-physical risks to workers. Traditionally civil courts, workplace safety and insurance boards, and human rights regimes have resolved such issues meaning the OHSA could provide an additional route for employees to pursue harassment claims. Employers with workplaces regularly employing more than five workers must prepare written policies on workplace violence and harassment, review the policies annually, and post them in an obvious place. Employers are required to implement the policies through vio- lence and harassment programs. Before completing the workplace violence pre- vention program, employers must assess their workplace for workplace violence, but not harassment risks. An assessment is not unique to bill 168 and is common to all Canadian jurisdictions with work- place violence legislation. The bill also extends the right to refuse work to include workplace vio- lence, but not harassment, grounds. A worker would have the right to refuse work if he or she believed his or her physical well-being was at risk because of the actual or attempted application of physical force. Bill 168 would also alter a worker's obligation to remain near their work area during the investigation of a work refusal. The new rules would per- mit a worker to remain as near as reason- ably possible to his or her work station. Notably, the bill contains a provi- sion, similar to Saskatchewan's legisla- tion, obligating an employer or super- visor to provide personal information related to a violence risk from a person with a history of violence, if a worker may encounter the person in the course of their duties, and if the risk is likely to expose the worker to physical injury. However, the bill provides no guidance on how much information may be given but stipulates that an employer cannot give more information than necessary to protect a worker. The opportunity to suggest changes to bill 168 remains. Employers with concerns about the content of the bill should lobby the government through their industry association or by con- tacting their local member of the prov- incial parliament or the Minister of Labour. Employers can prepare for changes to the OHSA by: • Identifying who is responsible for the workplace violence assessment, and then preparing for, or conducting the violence assessment; • Determining who will create and approve "workplace violence" and "workplace harassment" policies and programs; • Reviewing existing harassment poli- cies or programs to determine suitabil- ity for the required harassment policy; • Preparing to provide workers with information and instruction regarding workplace violence and harassment policies and programs; and • Reviewing existing work-refusal protocols to determine suitability to respond to work refusals exercised on violence grounds. It is likely that Ontario will add workplace violence and harassment to the OHSA. Employers would be wise to prepare for the change. IH Henry Dinsdale and Jeff Goodman are labour and employment law partners with Heenan Blaikie LLP in Toronto. Jeremy Warning, a senior associate with Heenan Blaikie LLP's labour law practice, assisted with this article. INHOUSE AUGUST 2009 • 7