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Jan 23, 2020

A New Year’s Reminder From the Ministry of Labour About Workplace Violence

By David S. Reiter

Last week, the Ministry of Labour (Ontario) (MOL) laid nine charges under the Occupational Health and Safety Act, R.S.O. 1990, c.O.1 (the Act) against an Ontario health facility. The charges relate to a January 2019 assault in which a patient who suffered from mental health issues attacked a nurse and a security guard. The nurse suffered a skull fracture and brain bleed. The guard suffered an orbital bone fracture. The charges will return before the court in February 2020. In light of amendments to the Act from 2017, the facility, if convicted, could face fines up to $1.5 million per count, plus a 25% victim fine surcharge.

These charges are a reminder for businesses that workplace violence continues to be a significant problem in Ontario, and they highlight why employers need to fully understand and comply with their workplace safety obligations.

Workplace Violence – What Do Employers Have to Do?

Part III.0.1 of the Act sets out specific duties that employers have to adhere to with regard to workplace violence. These include, but are not limited to, the duties to: assess the workplace for hazards; develop and implement programs aimed at controlling the risks associated with identified hazards; and share pertinent information with workers and train them on any relevant procedures.

As with all of the obligations that are in the Act, the devil is in the detail of how they can be implemented, practically and effectively. To help with that, we have identified three steps that every business should be taking in order to be compliant.

Step 1:            Assess the Hazards

Employers need to assess the risks of violence that may arise in their workplace. To do that they should, as a starting point, identify what physical objects in, or characteristics of, the workplace could be used for violent purposes. For example, if there are dangerous tools in the workplace that can be easily accessed, they could pose a risk. It may be that they should be locked away and access to them restricted. Another example would involve secluded areas in workplaces that have multiple points of access. They too could leave a worker exposed to potential violence, and it may be that they need to be actively monitored or increased security deployed.

Continuing on, businesses should be looking to the type of work that is being performed, and they should be asking whether that creates an opening for potential violence. For example, some workers tend to handle cash or deal with valuables. Those situations could leave workers exposed to the potential of theft or robbery, and specifically-tailored security procedures may be appropriate. These are the types of issues that need to be looked at when considering the nature of the business’s work.

There are also a variety of other circumstances related to the work that should be considered. For example, everything from the geographic location of the workplace to the times at which workers work to people the workers may encounter could create the potential for workplace violence. Each of these ought to be considered in a hazard assessment.

Finally, when a business is taking all of these considerations into account, they should be thinking about the experiences that similar types of workplaces have had to deal with. There may be sector-specific or industry-based risks that a business has in common with other businesses. These commonalities, insofar as they may expose workers to violence, should also be identified and considered.

Step 2:            Develop a Program to Control the Risk

Once a business has identified the risks of violence to which its workers are exposed, it needs to develop and maintain a program to address those risks.

To begin, employers should be putting measures and procedures into place that will control the hazards that they have identified in their assessment. Controls may be as simple as increasing security or monitoring, or they could involve developing new processes or increased awareness training. Again, there isn’t a one size fits all solution. At the end of the day, what the Act is really asking businesses to do is to look at their particular issues and develop reasonable responses.

At the same time, everybody, including the MOL, understands that there may be times when incidents of workplace violence cannot be avoided. Because of that, the program must also include ways for workers to summon immediate help when it may be needed. What this requires will be driven in large part by the nature of the potential harm that is identified in the assessment. It could be that providing workers with personal emergency communication devices is enough. Installing alarms in key locations at the workplace may work. It may also be that security people need to be on call. As is always the case when one takes proactive and protective measures, they need to be reasonable and tailored to the business’s specific needs.

Finally, the program must also set out how the business will deal with incidents of workplace violence after the fact. For example, there have to be procedures in place for reporting incidents of workplace violence, and for their investigation. Such procedures should always provide an opportunity for fulsome reporting, and investigations should include appropriate documentation procedures. Importantly, investigations should also include protections that address the privacy concerns of both the complainant and the accused.

Step 3:            Sharing Information and Training

In some ways, a central pillar of the Act rests on communication. There is an obligation placed on employers to provide information, instruction and supervision to their workers to protect their health and safety. It is of note that this specific obligation extends, without question, to concerns of workplace violence.

Recognizing that, businesses need to share information with their workers about their workplace violence programs and deliver effective training. If they don’t, the value in the assessments they performed or in the programs they developed may well be lost.

Generally speaking, employers have to share any information that they have relating to workplace hazards in a timely and meaningful way. This need for communication is so important that it even extends to advising workers of risks they may face from people with a history of violence (i.e. a co-worker, customer, etc.) where the encounter is likely to expose the workers to physical injury. Obviously, this kind of information can be highly personal (i.e. records of conviction, psychiatric record, etc.) and employers need to balance any privacy interests against the need to communicate information to workers. This should be done by limiting disclosure to the information that needs to be shared to protect worker safety. These obligations are set out in sections 32.0.5(3) and (4) of the Act.

The Act also obligates employers to provide workers with proper information and instruction on the business’s workplace violence program. This includes training on the measures and procedures that the business put in place to address any hazards that were identified in the assessment, as well as how to respond if there is an incident of workplace violence. These obligations are set out in sections 32.0.5(1) and (2) of the Act. Proper training should include, at a minimum, providing workers with copies of any underlying materials, meaningful review of the material with a supervisor, and refresher or update sessions as may be appropriate. Records of each of these steps should also be kept.

Conclusion

Sadly, workplace violence is a continuing problem in Ontario. Employers can address it only by assessing the risks particular to their business, developing responses to those risks, and informing and training their workers on those risks and responses. Approaching the problem may seem like a daunting task at first, but by following the three steps noted above, employers can go a long way toward tackling the problem, making their workplaces safe for their workers, and bringing their business into compliance with the workplace violence provisions of the Act.

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