Bill 186 : Groundbreaking Protection from Harassment and Violence (Professional Relations Services)

Over the last several years the provincial government has launched various safe schools initiatives.  Studies were conducted and safe school teams established. There  was greater recognition of and emphasis on the harmful effects of  bullying and cyber bullying. The government put in  place  new  policies and approaches  focus sing on protecting students from violence.¹ Now,  the  legislative  focus  is   squarely on the   safety  of   workers.  Bill   168   amends the Occupational  Health and Safety  Act  (OHSA)  and comes  into effect June 15. The amendments  provide workers with increased protection  from workplace violence  and  harassment. ETFO members should look  for  information   and   training  from employers about their new rights and protections. Bill  168  creates new rights for workers While the amendments bring about many changes four are key for  education.

1. Employers  must keep records about persons with a history of violence (this includes students). They must provide this  information to those who may encounter these  persons in  the  course of their duties and who may be at risk of injury as a result  of workplace violence.
2. Employers must put in place new policies and  programs  that deal with workplace  violence and harassment. This must include  measures to assess and control risks.
3. Employers must  provide  information  that tells  workers how to  get  immediate help,  how to  report violent   incidents,  and how they  will address incidents.
4. Employers must  consider domestic violence and take every reasonable  precaution  to protect workers when   there   is  a  risk  of  injury  in  the workplace.

Definitions  of workplace violence and harassment The definition  of  workplace harassment in  Bill 168  is  quite  broad. It  now encompasses   more than harassment as defined in the Human Rights Code, since it is not based on prohibited grounds – for example,  race or gender. Bill 168 states: “‘Workplace  harassment’ 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.” Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or  circulating offensive pictures or materials, or offensive or intimidating phone calls.² This new definition should  capture  bullying  and cyber bullying (which are of  particular concern to  ETFO members) and other types of psychological harassment. Workplace violence Bill  168  distinguishes between harassment  and violence and sets out different rights and obligations for each. Employers are  obligated to  protect workers from violence even if  it  is unintentional and  the  perpetrator may  not  appreciate the nature of  her/his actions. The definition of workplace violence is focused on actual or threatened physical force and injury. “‘Workplace violence’  means: (a) the exercise of physical force by a person against a worker, in a workplace,  that causes or could cause physical injury to the  worker (b) an attempt to exercise physical force against a worker, in a workplace,  that could cause physical injury to the worker (c) 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.”³ The Ontario Ministry of  Labour has published some very basic guidelines, resources, and draft policies on harassment and  violence. These are available on the  Ministry of  Labour website (labour.gov.on.ca). Risk assessments Bill  168  also  mandates that  employers assess the  risks  of violence that may arise from the nature of the workplace,  and the  type and conditions of work. Assessments  must take into account circumstances that would be common to similar workplaces as  well as those unique to a specific workplace. Employers are to report the findings of assessments to joint health and safety committees.  They must reassess as often as necessary to ensure the workplace violence policy continues to protect employees.  Workplace  joint health and safety committees  are entitled to copies of the risk assessment. Domestic violence Bill 168 requires employers to take every reasonable precaution to  protect workers from incidents of  domestic violence that would  likely result in physical injury in the workplace.  The bill does not define the term domestic violence and emphasis  is placed only on physical injury. School boards should draft policies, create websites, and distribute information that encourage workers who have experienced  domestic violence to report their circumstances to a designated person so that safety plans can be developed. Educators  who are experiencing domestic violence and  who fear that it  may follow them into the workplace should report it and ask that the school board develop  a safety plan to  protect them at work and in work-related  sites, such as parking lots. Disclosure of information about persons with violent history Another key aspect of Bill 168 is the obligation of employers to provide information, including personal information, about a  person with a history of violent behaviour. This disclosure requirement  is  triggered if  employees  could be expected to encounter the  person in  the  course of  their  duties,  and if there is a risk of workplace violence likely to result in physical injury.  School boards are not permitted to disclose more than is reasonably necessary to protect staff from physical injury. From our perspective, safety takes priority over confidentiality.  There are no clear rules yet  about how this  type of sensitive information will be disclosed, but it  is clear that it must be disclosed. The right to refuse unsafe work Section 43  of  the  OHSA grants workers the  right  to  refuse unsafe work. Bill  168  adds that workers  may refuse to work, or  do  particular work, “where workplace violence  is  likely to  endanger [them].”⁴   However, teachers may only exercise their right to  refuse work if their students are not in jeopardy. Students cannot be left unsupervised and, in the case of a work refusal, alternative supervision  should be arranged.   Notes _{1   See PRS Matters, vol. 51, “Bill 157 - Keeping Our Kids Safe at School Act“ and vol. 43, “Changes to the Safe Schools: Act Bill 212: What you Need to Know.” Available at etfo.ca f Advice for members  f PRS Matters  Bulletins. Also see Policy/Program  Memoranda 144 and 145, available at edu.gov. on.ca/extra/eng/ppm/ppm.html 2  labour.gov.on.ca/english/hs/sawo/pubs/fs_workplaceviolence.php 3   ibid.4   labour.gov.on.ca/english/hs/pubs/wpvh/violence.php}