Workplace Violence Prevention: Bill 168 and Employer Obligations

The Legislative Background

Before 2010, Ontario's Occupational Health and Safety Act (OHSA) addressed general workplace hazards but did not specifically address workplace violence. Employers had a general duty to take every precaution reasonable in the circumstances for the protection of a worker (section 25(2)(h)), which could encompass violence prevention, but there was no specific framework for identifying, assessing, and mitigating the risk of workplace violence.

Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), came into force on June 15, 2010. The Bill was prompted in part by high-profile incidents of workplace violence — including the 2005 shooting at an OC Transpo facility in Ottawa and the ongoing advocacy of families affected by workplace violence — and by the recognition that workplace violence was a significant occupational health hazard that required a dedicated regulatory response.

Bill 168 amended the OHSA to add specific provisions for workplace violence and workplace harassment. This article focuses on the violence provisions. The harassment provisions were subsequently expanded by Bill 132 in 2016.

What the Law Requires

Definitions

The OHSA defines "workplace violence" 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 (section 1(1)).

This definition is broad. It encompasses not only actual physical violence but also attempted violence and threats of violence. A threat does not need to be explicit — it is sufficient that a reasonable worker would interpret the statement or behaviour as a threat. A supervisor who says "you'd better watch yourself" in a context of escalating conflict may be engaging in conduct that meets the statutory definition, depending on the circumstances.

The definition includes domestic violence that enters the workplace. If an employer becomes aware, or ought reasonably to be aware, that domestic violence may occur in the workplace and that it would expose a worker to physical injury, the employer's workplace violence obligations are triggered.

Workplace Violence Policy

Every employer must prepare a written workplace violence policy. The policy must be reviewed at least annually, posted in a conspicuous place in the workplace (if there are six or more workers), and provided to each worker.

The content of the policy is not prescribed in detail by the statute, but the Ontario Ministry of Labour's guidance recommends that the policy include a statement of the employer's commitment to protecting workers from workplace violence, a statement that the employer will take appropriate action against anyone who engages in workplace violence, and a description of the process for reporting incidents and complaints.

Workplace Violence Program

In addition to the policy, the employer must develop and maintain a workplace violence program. The program is the operational complement to the policy — it describes how the employer will implement its commitment to preventing workplace violence.

The program must include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur, measures and procedures for workers to report incidents of workplace violence to the employer or supervisor, the process by which the employer will investigate and deal with incidents or complaints of workplace violence, and any other elements prescribed by regulation.

Risk Assessment

The employer must assess the risks of workplace violence that may arise from the nature of the workplace, the type of work, and the conditions of work (section 32.0.3). This risk assessment is the foundation of the violence prevention program — without understanding the risks, the employer cannot develop effective measures to address them.

The risk assessment must take into account circumstances that would be common to similar workplaces and circumstances specific to the workplace. For example, a hospital emergency department would need to assess the well-known risks associated with treating patients who are intoxicated, in psychiatric crisis, or in pain — as well as the specific risks arising from the hospital's layout, staffing levels, security measures, and patient demographics.

The employer must communicate the results of the risk assessment to the joint health and safety committee (or health and safety representative, if applicable). The assessment must be reviewed as often as is necessary to ensure it remains current.

Duty to Provide Information

When an employer becomes aware, or ought reasonably to be aware, that a worker may be exposed to a risk of workplace violence from a person with a history of violent behaviour, the employer must provide the worker with information that is reasonably necessary to protect the worker from physical injury (section 32.0.5(3)).

This duty to disclose is balanced against privacy concerns. The employer must provide enough information to protect the worker but should not disclose more personal information than is necessary. The provision recognizes that workers cannot protect themselves from risks they do not know about, while also acknowledging that the person who poses the risk may have privacy interests.

The practical application of this provision can be complex. A residential care facility that admits a client with a documented history of violence toward caregivers must inform the workers who will be caring for that client. A retail employer that receives credible threats from a terminated employee must inform the workers at the location where the threats are directed. The duty is not to disclose the person's complete history but to provide the information necessary for the worker to take appropriate precautions.

The Domestic Violence Dimension

Bill 168 was notable for extending workplace violence obligations to domestic violence situations. Section 32.0.4 provides that if an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer must take every precaution reasonable in the circumstances for the protection of the worker.

This provision acknowledges the reality that domestic violence does not stop at the workplace door. An abusive partner may follow the employee to work, show up at the workplace, make threats by phone or email during work hours, or attack the employee in the workplace parking lot. The employer's obligations are triggered when it has actual or constructive knowledge of the risk.

What constitutes "every precaution reasonable in the circumstances" depends on the situation. Reasonable precautions might include implementing a workplace safety plan for the affected worker, alerting reception and security to the potential threat, modifying the worker's schedule or work location, ensuring the worker is not required to work alone, and facilitating the worker's access to an Employee Assistance Program or community resources.

The employer is not expected to prevent domestic violence. The obligation is to take reasonable precautions to protect the worker in the workplace when the employer is aware of the risk.

Worker Rights and Obligations

The Right to Refuse Unsafe Work

Under OHSA, a worker has the right to refuse work that they have reason to believe is likely to endanger them (section 43). This right extends to situations where the worker has reason to believe that workplace violence is likely to endanger them.

The work refusal process is structured: the worker reports the refusal to their supervisor, the supervisor investigates in the presence of the worker and a joint health and safety committee member, and if the matter is not resolved, the Ministry of Labour is called. During the investigation, no other worker can be assigned to the refused work unless informed of the refusal and the reasons for it.

The right to refuse work is protected by the OHSA's reprisal provisions (section 50). An employer that disciplines, suspends, terminates, or otherwise penalizes a worker for exercising their right to refuse unsafe work contravenes the Act.

The Duty to Report

Workers have a duty to report workplace violence and threats of workplace violence to their employer or supervisor. This duty is implied by the OHSA's general obligation for workers to report hazards to their supervisor (section 28(1)(d)) and is explicitly part of most workplace violence programs.

Reporting is essential because the employer's obligations — investigation, risk assessment, protective measures — are triggered by knowledge. An employer that does not know about a threat cannot be expected to address it. Workers who witness violence, receive threats, or become aware of potential risks have an obligation to report so that the employer can respond.

Enforcement and Penalties

The OHSA is enforced by Ministry of Labour inspectors, who can enter workplaces, examine records, and issue orders. For workplace violence violations, inspectors can issue compliance orders requiring the employer to develop or improve a workplace violence policy, program, or risk assessment, orders requiring the employer to take specific protective measures, stop-work orders if there is an immediate danger to workers, and tickets or summonses for prosecution.

Penalties for OHSA violations can be significant. A conviction for a contravention of the OHSA can result in fines of up to $100,000 for an individual and up to $1,500,000 for a corporation. For a subsequent conviction, the maximum fines are $200,000 (individual) and $2,000,000 (corporation). In addition, individuals can face imprisonment of up to 12 months.

In practice, prosecutions for workplace violence prevention failures are relatively uncommon. The Ministry's enforcement focus has historically been on construction safety, industrial safety, and other high-hazard sectors. Workplace violence enforcement has been more complaint-driven than proactive, which means that employers in sectors with a high risk of workplace violence — healthcare, social services, retail, education — may not receive the inspection attention their risk profile warrants.

Common Employer Failures

Based on Ministry of Labour inspection data and reported decisions, common employer failures in workplace violence prevention include:

No risk assessment. The employer has never conducted a workplace violence risk assessment. This is a foundational failure — without a risk assessment, the employer cannot know what risks exist and cannot develop effective preventive measures.

Generic policies. The employer has a workplace violence policy, but it is a generic template downloaded from the internet, with no adaptation to the specific risks and circumstances of the workplace. A generic policy that does not address the actual hazards present in the workplace does not meet the OHSA standard.

No training. Workers have not been trained on the workplace violence policy and program, do not know how to report incidents, and do not know what to do if violence occurs. Training is not explicitly required by the OHSA's workplace violence provisions (unlike the harassment provisions added by Bill 132), but it is a practical necessity and may be required under the employer's general duty to take every reasonable precaution.

Failure to investigate. The employer receives a report of workplace violence or a threat and does not investigate. The failure to investigate leaves the risk unaddressed and may expose other workers to harm.

Failure to communicate risk. The employer is aware of a risk of violence — for example, a client with a history of violence, a terminated employee who has made threats, or a domestic violence situation — and does not inform the affected workers. The duty to disclose information reasonably necessary to protect workers is clear, and the failure to do so is a direct contravention of the OHSA.

The Civil Liability Dimension

Beyond the OHSA's regulatory framework, employers can face civil liability for workplace violence. An employee who is injured by workplace violence may have claims under workers' compensation (WSIB), common law negligence (if the claim falls outside the WSIB exclusivity bar), constructive dismissal (if the employer's failure to address violence constitutes a fundamental breach of the employment contract), and human rights legislation (if the violence is connected to a prohibited ground of discrimination).

The interaction between WSIB coverage and civil liability is complex. Generally, WSIB provides a "statutory bar" that prevents employees from suing their employer in tort for workplace injuries. However, the statutory bar does not apply to claims under the Human Rights Code or to claims arising from conduct that falls outside the scope of employment. An employee assaulted by a coworker may have both a WSIB claim (for the physical injury) and a human rights claim (if the assault is connected to discrimination or harassment).

What You Should Know

If you are concerned about workplace violence, here is what the law provides:

You have a right to a safe workplace. The OHSA requires your employer to take every precaution reasonable in the circumstances to protect you from workplace violence. This includes assessing risks, developing prevention programs, and taking action when threats are identified.

You have a right to information. If your employer is aware of a risk of violence that could affect you, they must provide you with the information necessary to protect yourself.

You have a right to refuse unsafe work. If you have reason to believe that workplace violence is likely to endanger you, you can refuse to work until the hazard is addressed.

You are protected from reprisal. Your employer cannot discipline or penalize you for reporting workplace violence, refusing unsafe work, or exercising any other right under the OHSA.

You can file a complaint. If your employer is not meeting its obligations, you can file a complaint with the Ministry of Labour. You can also contact the Occupational Health and Safety Information Line. Complaints can be made anonymously.

Workplace violence is not an acceptable cost of employment. The law says so. The question is whether the law is being enforced — and whether employees know enough to demand that it is.