Seven Years After Bill 168, We Learn It Is Costly Not to Comply With Violence Provisions Under OHSA

by & Cristina Lavecchia, Editors, First Reference

It has been a little under seven years since Bill 168 made amendments to Ontario’s Occupational Health and Safety Act (OHSA) by adding employer obligations regarding the prevention of workplace violence and harassment. Considering the release of recent employer convictions for failing to comply with employer obligations to prevent and protect workers from violence under OHSA, we thought it would be good to look at some of these cases and revisit the legislation to help employers understand those obligations and comply.

Workplace violence case examples

In July, the Centre for Addiction and Mental Health (CAMH) plead guilty and was fined $80,000 for “failing to develop, establish and put into effect measures and procedures including safe work practices” to protect a vulnerable sector of their work force.

During the night shift on January 14, 2014, a registered practical nurse was performing rounds when the nurse was attacked from behind by a patient who had a history of violence. The patient had not been following the prescribed medication plan. The first assault occurred in the hallway of a unit and a second assault occurred close to the nursing station. A co-worker of the assaulted nurse tried to intervene and also suffered injuries.

Both workers suffered physical and psychological injuries.

The patient was charged by the Toronto Police Services and convicted for this assault.

CAMH pleaded guilty to failing to develop, establish and put into effect measures and procedures including safe work practices to protect workers in the circumstances on the night shift from workplace violence or the risk thereof posed by a patient as is required by Section 8 of the Health Care and Residential Facilities Regulation (Regulation 67/93) and Section 25(1)(c) of the Occupational Health and Safety Act.

On August 16, 2016, an agency providing children’s mental health services and support for children and youth in Ontario was fined $125,000, following a workplace violence incident where a youth physically assaulted a staff member. A 25 percent victim fine surcharge, as required by the Provincial Offences Act, was also imposed.

One night, a youth worker who had recently started employment on the detention and custody unit for boys instructed a youth to return to his room for the night. The youth became agitated, entered the staff office and repeatedly struck the worker. A co-worker who was also in the staff office intervened in the assault and got injured as well. Both workers suffered physical and psychological injuries.

The agency plead guilty to failing to “provide information, instruction and supervision” to protect a worker from workplace violence or the risk of violence from a resident.

What are the employer’s obligation regarding workplace violence under OHSA?

The OHSA imposes a general duty on employers to, among others, “provide information, instruction and supervision to a worker to protect the health or safety of the worker” and “take every precaution reasonable in the circumstances for the protection of a worker”. These general duties also apply to workplace violence. However, there are specific obligations regarding workplace violence.

Employers must:

  • prepare and review, at least annually, a policy on workplace violence. The policy is required regardless of the size of the workplace or the number of workers. If five or fewer workers are regularly employed at the workplace, the policy does not necessarily have to be written; although, a Ministry of Labour (MOL) inspector may order otherwise.
  • assess the risk of workplace violence that may arise from the nature of the workplace, type of work or conditions of work.
  • take into account the circumstances specific to the workplace and circumstances common to similar workplaces, as well as any other elements prescribed in regulation.
  • develop measures and procedures to control identified risks that are likely to expose a worker to physical injury. These measures and procedures must be part of the workplace violence program. An employer is required to develop and maintain a program to implement the policy with respect to workplace violence, as noted above.

In the 2011 matter Kingston (City) v Canadian Union of Public Employees, Local 109, Arbitrator Elaine Newman noted the following with respect to Bill 168:

“The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way….The theory is that workplace violence is usually foreshadowed. It is, in many cases, predictable. The amendments reflect the view that violence can be prevented if employers, supervisors, and workers, seriously heed signs of danger, communicate clearly, and act with clarity when risk is identified.”

The above cases highlight the importance of complying with the law and having the appropriate written policies in place, to actively and continually assess the risks of violence that develop in the workplace on a daily basis and putting plans in place to avoid the violence materializing. This is especially true in cases where employees work in an environments such as the night shift and working with unpredictable and sometimes violent individuals.

A few things to consider

The following are some important notes that have been made by the MOL when it comes to handling workplace violence:

  • Workplace violence policy: The workplace violence policy can be combined with other polices, such as workplace harassment or the general occupational health and safety policy required by the OHSA, as long as all the requirements for the policies are clear and complied with.
  • Assessing the risks of workplace violence: “An assessment of the risks of workplace violence should be specific to the workplace,” states the MOL. “…circumstances specific to the workplace” could include, as noted by the MOL, “work carried out and conditions of work, including activities or circumstances associated with a higher risk of violence” (e.g., working with unstable or volatile people and working late nights, as was the circumstance in the above noted cases). The MOL notes that the risk of violence may be higher in particular sectors such as health care, social services, police, security and correctional facilities, among others.
  • Information and instruction on workplace violence: “To protect workers, the employer must tailor the type and amount of information and instruction to the specific job and the associated risks of workplace violence,” states the MOL. “Workers in jobs with a higher risk of violence may require more frequent or intensive instruction or specialized training.”

After accounting the above discussion, it appears “observation”, “evaluation”, “communication”, “prevention” and “curtailing” are some of the driving concepts behind fostering a workplace free from violence.

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