Final steps to Bill 168 compliance

Adam Gorley, Assistant Editor, HRinfodesk.com---Canadian Payroll and Employment Law News, July 2010

So, it's been more than a month now since Ontario's workplace violence and harassment amendments to the Occupational Health and Safety Act came into force, and I feel like we've nearly talked the subject into the ground. We've discussed what's in the amendments, how they affect Ontario's workplaces, what organizations have to do to comply with them, and numerous other issues associated with Bill 168. We even prepared our own guide to preventing violence and harassment in the workplace. What else is there to say?

Well, the most important question remains: Has your organization complied with the occupational health and safety workplace violence and harassment prevention requirements yet? That was the question in the last HRinfodesk poll, and the results were positive, if not impressive. Out of 199 respondents, 115 (58 percent) said they were in compliance with the amended law. Sixty respondents (30 percent) said they had taken at some steps to comply, but hadn't finished. And 24 (12 percent) said that they simply weren't in compliance.

The Ontario Ministry of Labour's website notes that, “The workplace violence and workplace harassment requirements are effective June 15, 2010, and are enforceable as of that date.” In other words, if the ministry wants to, it can now penalize your company for failing to comply with the amended Occupational Health and Safety Act (OHSA). That is, employers may face penalties for failing to:

• Prepare workplace violence and harassment policies, and reviewing those policies at least annually
   
• Implement an occupational health and safety program to complement the policy
   
• Assess the risk of violence that might arise from the nature of the workplace, the type of work or the present conditions, and re-assessing the workplace as often as necessary
   
• Take necessary precautions to protect employees from violence and harassment at work
   
• Provide information and instruction to workers to protect them, including information about the existence of actual and potential dangers
   
• Take steps to prevent domestic violence from entering the workplace

However, it's important to note that, “It is not the role of ministry inspectors to resolve or mediate specific allegations of harassment in the workplace." In other words, the amended OHSA doesn't task the Ministry of Labour with investigating or resolving complaints of workplace harassment. Rather, employers must investigate and work to resolve these complaints internally, or, if appropriate, by involving the police.

Human Rights Advisor, Andrew Lawson, clarifies:

• The Ministry of Labour will investigate to ensure employers have policies and procedures in place for dealing with complaints of harassment and violence.
   
• The ministry will investigate to ensure you have completed a violence risk assessment specific to your workplace.
   
• The ministry will investigate to ensure you are communicating with your employees on these issues.
   
• The Ministry of Labour is responsible for ensuring employers have these systems in place; not for investigating complaints.
   
• The ministry furthermore has the legal authority to issue orders to comply where an employer is in contravention of the law and to prosecute an employer, supervisor or worker for failing to comply with an inspector's order.

So, if you're an employee, and you suffer violence or harassment at work, don't bother calling the Ministry of Labour. Talk to your supervisor, health and safety representative, joint health and safety committee or the police. However, if you find out that your employer doesn't have a policy and program in place to handle such complaints, then you can and should call the ministry.

And if you're an employer or supervisor, and an employee comes to you with a complaint of violence or harassment, don't bother calling the Ministry of Labour. It's your responsibility to handle those complaints in conjunction with an employee health and safety representative or safety committee. You should by now have in place a policy and program to guide your actions in the event of complaints. However, if you need help preparing your policy and program, you can call the ministry and I'm sure they'll be happy to help.

If you haven't finished your compliance preparations, you may be able to breathe a little easier though. Yosie St-Cyr, Managing Editor of HRinfodesk, points out that:

“The Director [of the Health and Safety Policy and Programs Development Branch, at the Ministry of Labour, John Vander Doelen] did indicate that after June 15, if they [the ministry] are inspecting a workplace and find there is non-compliance with the violence and harassment prevention rules, they will provide some leeway; but it will be on a case-by-case basis and will depend on the circumstances.

“The MOL inspectors do not intend to provide more than two to four weeks time to the employer to do what is necessary to comply. But for sure starting in 2011, enforcement will be strict.”

Regardless of deadlines and grace periods, it's best not to put off such an undertaking like this, since it's difficult to say precisely how long it will take an organization to fully implement the necessary changes. It's not just preparing a policy and program, it's also assessing the risk in your workplace, training your employees on the policy and making any structural and cultural changes necessary to reduce or eliminate the risk of violence.

Hopefully that makes things a bit clearer, and good luck to those organizations still working their way through the compliance requirements!

By Adam Gorley, Assistant Editor at HRinfodesk.com

Published on HRinfodesk---Canadian Payroll and Employment Law News and Developments

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