Occupational Health and Safety Act Amendments (Formerly Bill 168)
Bill 168 introduced by Ontario’s Minister of Labour (MOL) was passed into law on December 15, 2009. This Bill amends the Occupational Health and Safety Act (OHSA) by prescribing a process that employers must follow to deal with violence and harassment in the workplace. Schools are workplaces within the meaning of the Act and principals/vice-principals are considered both supervisors and employees with specific responsibilities and entitlements. These legislative changes came into force on June 15, 2010. The table below highlights the key amendments, demonstrates how those amendments translate into responsibilities for P/VPs and offers some words of caution with respect to these new changes. It is imperative that principals are aware of the duties as prescribed by these amendments and highlighted in the chart below.
| KEY OHSA AMENDMENTS |
PRACTICAL IMPLICATIONS |
WORDS OF CAUTION |
| A workplace violence policy must be developed and reviewed at least annually. (32.0.1(1)(a) and (c)) |
Boards must draft this policy and may require P/VP input. The prescribed definition of workplace violence1 must be included. ESAO recommends one all-encompassing policy. |
There can be no deviation from the prescribed definitions and process.
Consider implications for other policies: Safe Schools, OHSA, police/board protocols. |
| A workplace harassment policy must be developed and reviewed at least annually. (32.0.1(1)(b) and (c)) |
Many boards already have a policy. It must now be revised to include the required elements. The definition of workplace harassment 2 must be included. If the Board already has a policy, it will need to be reviewed to ensure it includes the prescribed terms. |
This may be an opportunity to obtain other “gains” in the policy. For example, encourage a delineation of what is not “workplace harassment.” See the “Educator’s Guide to Understanding Workplace Harassment“ for other policy suggestions. This may also be an opportunity to acquire a Workplace Harassment policy separate from Human Rights. |
1 “Workplace violence”means,
- 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,
- a statement or behaviour that 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.
2 “Workplace violence”means 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.
| Key OHSA Amendments |
Practical Implications |
Word of Caution |
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Both policies must be posted in a conspicuous location. (32.0.1(2),
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P/VP will need to ensure the most up-to-date policies are appropriately posted. |
MOL inspectors will check for appropriate postings. |
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Employers must develop and maintain a program to implement the workplace violence policy that includes
procedures to control risks, summon immediate assistance
and to report, investigate and deal with violent incidents.
The employer also has to provide employees with “information and instruction” regarding the violence policy
and program. (32.0.2(1) and (2))
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P/VPs are supervisors under the Act with clear legislative and employment duties. P/VPs need to understand, reinforce the Board “teaching” and implement these processes. P/VPs will need to ensure that all staff understand the definition of workplace violence and how /to whom to report incidents. Once the processes are understood, P/VPs need to ensure they have the school resources to carry them out (e.g. two-way radios, panic buttons, adult in close proximity). |
MOL inspectors intend to speak with individual employees to “test” their knowledge of the policy, not simply whether they attended training. Staff will need to be able to explain the reporting process and how to summon immediate assistance.
How principals handle the obligation to have measures in place to summon immediate assistance will vary based on the risk assessment (below).
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| A mandatory assessment of the risk of violence for each workplace is required. The assessment must consider the nature of the workplace, type and conditions of work. (32.0.3(1),
A reassessment is required “as often as is necessary” to ensure the workplace violence policy and procedures continue to protect workers from workplace violence. (32.0.3(4))
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P/VPs are likely to be directed to perform the risk assessments for their schools. A board supplied checklist is crucial to this exercise. The checklist needs to consider all programming and uses of the building – special education, Early Learning Plan, before/after school care, home visits, extra-curricular uses, community use, night/summer school programs, etc. Employees, whose jobs involve frequent contact with the public, who handle money and work alone at night must also be considered. The MOL is preparing a general checklist (not education sector specific) that may assist. The Education Safety Association of Ontario also has a workbook to guide these assessments. |
There is some suggestion that employee surveys may be one source of data for these risk assessment. If so, it must be clear that it is risk of violence (not harassment) data that is being sought.
It does not appear necessary to “re-assess” when new students or staff arrive at the school and indeed this could attract human rights complaints. The “assessment” is to test and assess existing processes to ensure they can respond to anticipated violent events.
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| KEY OHSA AMENDMENTS |
PRACTICAL IMPLICATIONS |
WORDS OF CAUTION |
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The JHSC must be advised of the results of the assessment and given a copy if it is in writing. (32.0.3(3))
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P/VPs will be responsible to advise the school JHSC of the results of the assessment and to share the assessment with the board in the manner directed.
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Be careful to follow board direction where the JHSC exists only as a central
committee in terms of communication.
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If employers become aware or ought reasonably to know that a situation of domestic violence could expose a worker to violence in the workplace, it must take every reasonable precaution to protect the worker. (32.0.4)
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There is no definition of “domestic violence.” The MOL is going to release a background resource to give employers and employees guidance around this issue. The intention is that the behaviour in question must satisfy the definition of workplace violence and be initiated by a family member or partner.
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This section should not prompt P/VPs to make inquiries into the personal lives of their staff. If however staff relay information directly or indirectly to administration or provide documentation (i.e. restraining order) that triggers the concern that domestic violence could manifest in the workplace, the P/VP must act. A discussion with the SO, board counsel and staff member involved should occur with a view to determining what reasonable steps could be taken to protect the worker and his/her colleagues (interior classroom, communications device, buddy system to/from parking lot, different hours).
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The employer must provide and the supervisor advise, a worker of information
(including personal information) where there is a risk of workplace violence from a person with a history of violent behaviour and the worker is likely to be exposed to physical injury. No more personal information than is reasonably necessary to protect the worker from physical injury is to be shared. (32.0.5(2), (3), (4))
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Boards and principals have had the duty to provide/advise employees of information to protect employees’ health and safety and to warn of potential or actual dangers. This amendment expands the information sharing responsibility considerably to now compel the sharing of personal information about other board employees and students in certain circumstances. Opportunity/obligation to review confidentiality expectations with
staff.
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It is critical that P/VPs seek direction from boards around their new information-sharing mandate.
1. Will boards advise P/VPs if offence declarations or CBCs reveal an employee’s history of violent behaviour that must be disclosed?
2. How does the board want P/VPs to interpret “history of violent behaviour” in the absence of a definition in OHSA? How far back in an employee or student’s history must one look and account
for such a history?
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| KEY OHSA AMENDMENTS |
PRACTICAL IMPLICATIONS |
WORDS OF CAUTION |
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- Do the Ed Act confidentiality provisions (eg. OSRs) trump the I?
- What do boards advise vis-à-vis disclosure of personal, medical information and the OHRC, Charter?
- How, if at all, will this impact information received under YCJA?
- What criteria should be used by the P to guide the decision of whether and which worker(s) are at risk of workplace violence from the person in question and therefore entitled to be given information? Find creative ways to share key information without violating legislation, and remember only share the minimum information necessary to protect the worker from physical injury
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Employers must develop and maintain a program to implement the workplace harassment policy that includes procedures to control, report incidents, investigate and deal with workplace harassment incidents.
The employer also has to provide employees with “information and instruction” regarding the workplace harassment policy and program. (32.0.2(1) and (2)) and program. (32.0.2(1) and (2)) |
P/VPs are supervisors under the Act with clear legislative and employment duties. P/VPs need to understand, reinforce the board “teaching” and implement these processes. P/VPs will need to ensure that all staff understand the workplace harassment policy and how/to whom to report incidents. |
Principals and vice-principals may be more frequently the recipients of complaints under this policy, despite their best efforts to comply. |
| Employees with the right to refuse work may now do so where they believe workplace violence is likely to endanger themselves. (4.(1)–(6)) |
P/VPs must ensure that they understand the different rights of work refusal available to their staff (teachers – limited right – only where life, health safety of a pupil is not in imminent jeopardy) whereas EAs have full rights of work refusal. |
Workplace harassment incidents would not form the basis of work refusals. |
Other Related Matters
The OHSA is legislation which has been given paramountcy over all other provincial laws (s. 2(2)).* If there is a conflict between the OHSA and the Education Act, OHSA will prevail. The MOL insists that these two Acts do not conflict but rather there are times when certain sections “compete” with one another. For example, s.32.0.5(3) of OHSA appears to require a supervisor (P/VP) to provide education assistants with personal student information where that student has a history of violent behaviour and the EA can be expected to encounter that student in the course of his/her work. The Education Act prohibits the disclosure of information contained in the OSR to EAs absent parent consent. In these circumstances, it may be possible for the P/VP to share general information with the EA orally that is not contained in the OSR and otherwise satisfies the OHSA “provision of information” obligation. However if the P/VP believes more specific information needs to be shared, the P/VP should seek direction from the Supervisory Officer to resolve the conflict.
* The MOL has indicated it has legal opinions “in hand” which affirm the paramountcy of OHSA. In contrast, some board counsel take the position that the Education Act continues to have priority and must therefore be followed where there is a conflict. In light of these two opinions, P/VPs do not want to be caught in the middle and so clear direction must be sought from the board before personal information is shared.