Bill 168

LCH Resources Limited, is committed to providing Training and Consulting Services to ensure our clients achieve compliance with Bill 168; the amendments to The Occupational Health and Safety Act, where it concerns Workplace Violence and Harassment.​

The laws in Ontario have changed. Achieve compliance today. Do you want to save hours and hours of work? Do you have the time to research and become an expert on policy development? If not, we can help implement the policy, process, procedures, and training to ensure you are compliant in a cost effective manner. Why spend thousands of dollars in employee hours and aggravation when we have a cost effective package to get you compliant quickly. Bill 168 amends the Occupational Health and Safety Act. Here are some of the things you need to do to be prepared:

  • Conduct Workplace Violence Risk Assessments: Employers must conduct regular assessments in the workplace for risks of violence to ensure workers are protected.

  • Assess current policies and develop a workplace and harassment policy incorporating the new requirements of workplace violence and bullying, including:

  • Domestic Violence: Employers are expected to take reasonable precautions, if they are aware or ought to be reasonably aware, to protect workers from domestic violence in the workplace.

  • Disclosure of Persons with a Violent History: Employers must also disclose information to a worker about a person with a history of violent behaviour.

  • Right to Refuse Work: Employers must allow workers to refuse work if they believe they are at risk of violence in the workplace.

  • A complaint and investigation procedure must be developed.

  • Training and education must be conducted.

The new rules address violence and harassment in the workplace. Other provinces such as Quebec, Nova Scotia, and British Columbia have already introduced similar legislation, however the amendments to Ontario's law is unique in several respects. Bill 168 requires that employers take reasonable precautions to protect workers from domestic violence that may occur in the workplace and result in physical injury. It also grants workers the right to refuse to work in situations where they feel endangered by workplace violence.

New Obligations Regarding Workplace Violence

Bill 168 represents a significant change in how, and to what extent, both workplace violence and harassment is regulated in Ontario. It also broadens the definitions of workplace violence and places new requirements on Ontario employers. Under Bill 168, workplace violence is defined as: 

The exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker;
An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; or
A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

Extended Definition of Workplace Harassment

Bill 168 broadens and extends the definition of workplace harassment beyond what is presently covered under the Ontario Human Rights Code.

The Human Rights Code has long prohibited harassment in the workplace based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status, or disability.

Traditionally, harassment that was based on other, non-protected grounds was not actionable, unless the employer had extended additional protection by way of policy or it had agreed, as part of the collective bargaining process with a union, to incorporate broader protection in a collective agreement.  Bill 168 will change this because it will require employers to treat harassment based on non-protected grounds in the same manner as harassment based on Code-protected grounds.

Bill 168 defines workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome and not already protected under the Human Rights Code.

Definition of Harassment under OHS and HRC

The definition of harassment in occupational health and safety law mirrors the definition found under human rights legislation, and includes bullying, teasing, gossiping, sexual harassment and so forth, but is not limited to the prohibited grounds of discrimination; thus the OHS law has broader application.

Can one policy address both violence and harassment?

According to the director, these topics should not be addressed in one policy. There should be separate policies addressing violence and harassment. Indeed, the law 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.

Domestic Violence
The Ministry of Labour does not require employers to perform a proactive risk assessment regarding domestic violence. The risk assessment is reactive in this case, meaning, if a worker or co-worker reports the possibility of domestic violence, or there are visible signs, then a risk assessment should be triggered to ensure that controls are in place to prevent the violence from entering the workplace.

Criminal Record Checks or Background Checks
The Ministry of Labour admits that this may be a grey area, but the Ministry does not require proactive criminal record checks or enhanced background checks to identify an employees or applicants history of violence (digging into someones past).  

Disclosure Requirement
There is no obligation to disclose a history of harassing behaviours, only the risk of violent behaviours based on previous incidents of violence. One guiding principle for disclosure is to decide if the evidence or facts brings you to the reasonable conclusion that you will or will not find violence in the workplace. Employers have to use a balanced approach in this obligation to ensure they are not making the disclosure so widespread in the workplace that it invades anyones privacy or becomes a discriminative action.

What employers need to know is the potential for violence, or when violence might occur, so that they can take precautionary measures. But employers are not allowed to ask for diagnoses, medical information or treatment. That is beyond the scope of the law.

This said, the Ministry of Labour is getting ready. They are currently in the process of:

  • Integrating the provisions of Bill 168 into the Occupational Health and Safety Act

  • Training inspectors

  • Developing resources and tools such as brochures, fact sheets and compliance guidelines with checklists

In addition, the Director emphasized that Ministry inspectors are there to enforce compliance with the law. If an incident happens, you are obliged to call the Ministry to report the incident, but they will not investigate harassment complaints or take action against a perpetrator of violence. The police will still have to be called. The Ministry is there to ensure that employers are complying with the law and following the rules to prevent the risk of violence and harassment in their workplace.

The June 15, 2010 deadline has passed! Complacency can expose your organization and its members to unnecessary financial risk, as there are steep fines for non-compliance. Please contact us for a consultation