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Workplace violence and harassment policies ― integrate or not?

Workplace violence and harassment policies ― integrate or not?

By Yosie Saint-Cyr, LL.B., Managing Editor, HRinfodesk.com---Canadian Payroll and Employment Law News, March 2010

Ontario's upcoming occupational health and safety violence and harassment rules require that employers implement violence and harassment prevention policies. Manitoba and Saskatchewan also require OHS policies for both workplace hazards. When drafting or updating your violence/harassment policies to meet legal OHS requirements (e.g., Ontario's Bill 168), are you creating individual policies or integrating your policies? That was the question asked in the most recent HRinfodesk poll. According to the results of the poll, out of 155 responses, 84 (~54%) respondents intend to comply to the letter of the law, while 71 (~46%) respondents have taken another approach by integrating both policies into one.

What does the law say?

Manitoba, Saskatchewan and Ontario (the latter effective June 15, 2010) are the jurisdictions that specifically require employers to protect employees from the hazards of workplace violence and harassment under Occupational Health and Safety legislation and/or regulations. All three provinces deal with violence and harassment as separate hazards with different requirements, and clearly indicate the need for separate policies.

Manitoba

Manitoba's Workplace Safety and Health Regulation 217/2006, part 10, deals with harassment, and part 11 with violence prevention.

The workplace harassment provisions indicate that all employers must develop and implement a written policy to prevent harassment in the workplace and provide the language required in such a policy. Employers must post a copy of the harassment prevention policy in a conspicuous location at the workplace.

With respect to workplace violence, employers must conduct a risk assessment, but they need only develop a policy when the assessment identifies a risk of violence in the workplace. The provisions also provide the language required in such a policy. As with the harassment policy, employers must post a copy of the violence prevention policy in a conspicuous spot at the workplace.

The WCB guidelines also speak of two policies: http://safemanitoba.com/uploads/guidelines/harassmentviolence.pdf

Saskatchewan

Saskatchewan's Occupational Health and Safety Act and regulations deal with harassment and violence prevention in the workplace.

Section 36 of The Occupational Health and Safety Regulations requires all employers in Saskatchewan to develop and implement a written harassment policy that meets the requirements of that section to deal with complaints of harassment.

Section 14 of the Occupational Health and Safety Act, and section 37 of the regulations, set out the employer's responsibility in developing and implementing a policy to deal with violence in the workplace. The policy is required outright in certain prescribed workplaces where violent situations have occurred or may reasonably be expected to occur. For others, the employer is only required to implement a policy when a risk of violence in the workplace is identified after a risk assessment.

Government guides deal with the issues separately:

Harassment prevention: www.labour.gov.sk.ca/harassmentpg

Violence prevention: www.labour.gov.sk.ca/Default.aspx?DN=3997c928-4c2f-4d85-90ab-9b43751d8f21

Ontario

Ontario's Occupational Health and Safety Act, Part III.0.1 refers to them as “policies” not one policy. More specifically, the clause is drafted as follows:

Policies, violence and harassment

32.0.1 (1) An employer shall,

(a) prepare a policy with respect to workplace violence;

(b) prepare a policy with respect to workplace harassment; and

(c) review the policies as often as is necessary, but at least annually.

It also provides the language required in both policies, and states that an employer must post a copy of each policy in a conspicuous place at the workplace.

The workplace harassment policy is required outright and the workplace violence policy is only required when a risk of violence in the workplace is identified after the employer conducts a risk assessment.

However, having the harassment and violence polices in writing and posted in a conspicuous place in the workplace does not apply to workplaces with five or fewer regular employees. Notwithstanding, an inspector can order a workplace with fewer than five employees to implement these policies if there is evidence of the risk of workplace violence and harassment, or after an incident occurs.

Note: the above clause does not mean that employers with fewer than five employees will be exempt from the provisions of Bill 168. The Ministry of Labour has confirmed that all Ontario workplaces to which the Occupational Health and Safety Act currently applies must take every precaution reasonable in the circumstances to protect the health and safety of their workers in the workplace. This includes protecting employees against the risk of workplace violence and harassment.

This means that no matter the size of the organization, employers must assess the risk of violence, and harassment (depending); take reasonable measures to prevent violent and harassing incidents and protect employees; have measures to report, respond and investigate incidents of violence and harassment; and provide training and education to employees on the hazards of violence and harassment.

In addition, the Ontario Ministry of Labour has taken many opportunities already to point out that employers must address these topics in separate policies in order to comply with the law.

There's not a lot more to say. If you operate a business in Manitoba, Saskatchewan or Ontario, you must develop a workplace harassment prevention policy and assess the risk of violence in your workplace(s). In Ontario, you must implement a workplace violence policy regardless of the results of the risk assessment (except businesses with fewer than five employees); in Manitoba and Saskatchewan, employers need only create a violence policy if the assessment indicates a risk that violence might occur. But whichever province you operate in, if you've got to have policies on both harassment and violence, the law says you must have one for harassment and one for violence—separate policies, not combined. Otherwise, you face other hazards: the risk of confusing information, misunderstanding and legal challenge. Luckily, these hazard are easy to avoid!

If you haven't already, check out First Reference's recently updated Workplace violence & harassment prevention: A practical guide for employers.



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