These days, Ontario law firms are feverishly conducting workshops filled with overwrought administrators and HR types.  No, they’re not training them to be lawyers, though that might save a lot of legal fees in the long run.  Rather, they are introducing the risks, pitfalls and gotta-do’s of Bill 168, Ontario’s new workplace violence and harassment legislation.

 

It is sweeping legislation that squarely places accountability on employers and supervisors to assess the risks of violence occurring in their work places, putting policies and programs in place to address those risks, and educating employees about them – including the identification of workers who pose a potential risk to other employees.

 

Bill 168 puts the onus on employers and supervisors to:

 

• Establish workplace violence and harassment policies and train employees in them
• Complete risk assessments of the possibility for workplace violence or harassment and provide this information to employees
• Disclose incidents of workplace violence and harassment with the joint health and safety committee and any risk assessments undertaken
• Provide information to specific employees about the risk of workplace violence from a co-worker with a history such behaviour
• Establish a process for employees to report instances or risks of workplace violence and harassment
• Discipline employees for not following workplace violence and harassment policies or for committing workplace violence or harassment
• Offer a confidential employee assistance program to allow employees subject to workplace violence or harassment, or those with personal problems, to seek help;
• Ensure that proper security measures are in place at the workplace to protect workers from members of the public or customers
• Keep detailed records of any workplace violence or harassment, investigation or work refusal.

 

If this sounds like a lot of work or a recipe for potential litigation, it needn’t be.  More than anything else these requirements are about due diligence.  Did you make a reasonable effort to establish compliant policies, assess and address risks, put processes in place, and above all, keep employees informed and aware?

 

So where to start?  Begin with a review of your own policies.  You know, that dusty binder on a shelf that no one reads.    Identify where your violence and harassment policies have gaps with Bill 168 and fix them.  If necessary, write a policy from the ground up.  Next, obtain, or put together a template or checklist of considerations to fully assess the risk of violence in the work place.  This includes: reviewing records and reports that may point to risks from past behaviours; assessing the very nature of your business and ones similar to it; factors such as exposure to the public (eg, serving alcohol at establishments) working at client premises, working alone or with unstable individuals, early/late hours of work; and transportation of people or goods. 

 

You’ll also need to engage employees in the conversation so that they have input into the risks considered, and in developing a program to control and minimize risks of violence and harassment.  Those with health and safety committees have a ready advantage here.     Finally, develop a roll-out plan so that policies, assessments and programs get out there as they are intended, including processes for reporting and feedback.  And revisit it all annually to keep it current.

 

Perhaps the most contentious element in the legislation is the employer’s duty to inform an employee if there is a potential risk of violence from another employee.   Employers don’t have to do criminal record checks on employees, but if the company record shows incidents of violence (or threats thereof), employers should disclose only enough information to the employee at risk to take reasonable precautions.  

 

Lest small employers think they are exempt from these requirements, the legislation applies to all organizations with 5 or more employees.  And remember, inspectors from the Ministry of Labour have extraordinary powers that would make police blush.  They can enter workplaces, demand documentation, and interview employees without warrants.   

 

This all comes into effect in June, 2010 but that isn’t the date to start working on policies, assessments and programs.    You’ll need to show you’ve done your homework and have these pieces in place by June when the Ministry of Labour shows up to ask for them.  And you know they will.  Depending on the circumstances, failure to have compliant policies and programs can result in six-figure fines and prison time.

 

Again, this is a due diligence project but it need not be one completed by a squad of expensive lawyers.  You need someone inside the organization to lead the effort from policy formulation through assessments and program development, but with prudent external resources as needed.  You may also want to have a lawyer review your policy and program when it’s ready.  That way, you have a point-person to undertake the annual reviews with minimal disruption.

 

In short, when it comes to Bill 168, do the right thing, and be seen to have done the right thing.