Workplace violence remains significant issue in Ontario
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9 charges to Southlake hospital a stark reminder to employers
Earlier this month, nine charges were laid against Southlake Regional Health Centre.
The charges relate to a January 2019 assault in which a patient who suffered from mental health issues attacked a nurse and a security guard. The nurse suffered a skull fracture and brain bleed. The guard suffered an orbital bone fracture.
The charges will return before the court in February 2020.
If convicted, the Newmarket, Ont., facility could face fines of up to $1.5 million for each charge under the Occupational Health and Safety Act, alongside a victim fine surcharge of 25 per cent.
These charges are a reminder for businesses that workplace violence continues to be a significant problem in Ontario, and highlight why employers need to fully understand and comply with their workplace safety obligations.
Part III.0.1 of the Occupational Health and Safety Act sets out specific duties that employers have to adhere to with regard to workplace violence.
These include — but are not limited to — the duties to assess the workplace for hazards; develop and implement programs aimed at controlling the risks associated with identified hazards; and share pertinent information with workers and train them on any relevant procedures.
As with all of the obligations that are in the act, the devil is in the details of how they can be implemented — practically and effectively.
Below are three steps that every business should be taking in order to be compliant:
Assess the hazards
Employers need to assess the risks of violence that may arise in their workplace.
As a starting point, they should identify what physical objects in the workplace could be used for violent purposes.
For example, if there are dangerous tools in the workplace that can be easily accessed, they could pose a risk. It may be that they should be locked away and access to them restricted.
Businesses should also examine the type of work that is being performed, and they should be asking whether that creates an opening for potential violence.
Some workers tend to handle cash or deal with valuables. Those situations could leave workers exposed to the potential of theft or robbery, and specifically-tailored security procedures may be appropriate.
Other circumstances related to the work should also be considered in a hazard assessment, including geographic location to times of work.
Develop a program
Once a business has identified the risks of violence to which its workers are exposed, it needs to develop and maintain a program to address those risks.
Controls may be as simple as increasing security or monitoring, or they could involve developing new processes or increased awareness training.
There isn’t a one-size-fits-all solution. At the end of the day, what the act is really asking businesses to do is to look at their particular issues and develop reasonable responses.
There may be times when incidents of workplace violence cannot be avoided. Because of that, the program must also include ways for workers to summon immediate help when it may be needed.
Finally, the program must set out how the business will deal with incidents of workplace violence after the fact. There must be procedures in place for reporting incidents of workplace violence, and for their investigation. Such procedures should always provide an opportunity for fulsome reporting, and investigations should include appropriate documentation procedures. Importantly, investigations should also include protections that address the privacy concerns of both the complainant and the accused.
Share information and train
In some ways, a central pillar of the act rests on communication. There is an obligation placed on employers to provide information, instruction and supervision to their workers to protect their health and safety.
Recognizing that, businesses need to share information with their workers about their workplace violence programs and deliver effective training. If they don’t, the value in the assessments they performed or in the programs they developed may well be lost.
This need is so important that it even extends to advising workers of risks they may face from people with a history of violence (for example, a co-worker or customer) where the encounter is likely to expose the workers to physical injury.
This kind of information can be highly personal and employers need to balance any privacy interests against the need to communicate information to workers. The act also obligates employers to provide workers with proper information and instruction on the business’s workplace violence program. These obligations are set out in sections 32.0.5(1) and (2).
Proper training should include — at a minimum — providing workers with copies of any underlying materials, meaningful review of the material with a supervisor and refresher or update sessions as may be appropriate. Records of each of these steps should also be kept.
Advice for employers
Unfortunately, workplace violence remains a major problem in Ontario.
Employers can address it only by assessing the risks particular to their business, developing appropriate responses, and informing and training their workers on both aspects.
Approaching the problem may seem like a daunting task at first, but by following the three steps above, employers can go a long way toward tackling the problem, making their workplaces safe for their workers, and bringing their business into compliance with provincial law.
David Reiter is a partner with Aird & Berlis in Toronto.
This article offers general comments on legal developments of concern to business organizations and individuals and is not intended to provide legal advice. Readers should seek professional legal advice on the particular issues that concern them.
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