On June 15th 2010, an amendment to the Occupational Health and Safety Act was signed into Ontario law which focuses on workplace harassment and violence. The new changes are important for all workplaces, including sport organizations. It is also notable that the vast majority of National Sport Organizations are incorporated under Ontario law, and have offices in Ontario, and are thus affected by this new law. Not complying with the law may result in heavy fines.
What is workplace violence and workplace harassment?
Workplace violence is defined by the Act as the exercise of physical force against a worker in a workplace. Workplace violence includes attempts to exercise physical force that could potentially cause physical injury, as well as statements or behaviour made against a worker, in a workplace, that may be considered a threat to cause physical injury. Additionally, a person who has a personal relationship with a worker – such as a spouse or former spouse, current or former intimate partner, or family member – who physically harms or attempts or threatens physical harm a worker at work, is also considered workplace violence.
Workplace harassment is defined by the Act as conduct or comment made against a worker, in a workplace, that is known (or ought reasonably to be known) to be unwelcome. Harassment is usually considered to be multiple instances of unwelcome behaviour which may occur in a single day or over a prolonged period of time. Unwelcome behaviour includes words and conduct that is offensive, embarrassing, humiliating, demeaning, bullying, intimidating, or discriminating.
Why must there be compliance?
Back in 2004, a Statistics Canada survey found that 17% of all violent incidents in Canada occurred in the workplace. This has resulted in the current amendments to the Act, so as to enhance safety measures in the workplace and additional protections to workers. Ministry of Labour health and safety inspectors will enforce compliance – and as of June 15th 2010, workplaces are expected to be in compliance with the law.
Becoming compliant with the law requires organizations to take three main steps: a risk assessment, policy making, and program implementation. These three steps are outlined further below.
Who must comply?
A workplace is defined by the Act as “any land, premises, location or thing at, upon, in or near which a worker works” and a worker is defined as “a person who performs work or supplies services for monetary compensation”.
Some exclusively volunteer organizations will be exempt from being required to comply with the Act. For example, a local soccer association with a President, Board of Directors, convenors, and coaches, all of whom are volunteers, would not be required to comply with the Act. But a provincial association that employs staff, pays a stipend or honorarium to coaches, and/or pays its volunteers would need to comply with the Act. Note that even if the organization has only two paid staff members – there must still be compliance.
How sports organizations must comply with the Occupational Health and Safety Act
It’s possible, even likely, that your organization is already partly compliant with sections of the Act. Most organizations have policies for emergency situations, hiring and dismissal standards for workers, and a code of conduct for employees. These may be a good part of an over-all policy initiative required under the Act. Complying with the new changes to the Act requires the organization to take three steps:
1) Assessment of the risk for workplace violence
Conducting an assessment of the risks for workplace violence is an essential component for compliance with the Act. An assessment involves determining the potential for workplace violence as a result of the nature of the workplace, circumstances specific to the workplace, the type of work being performed, and the conditions of the work. A risk assessment must include measures to control the identified risks that are likely to expose a worker to physical injury. Employers must also identify workers with a previous history of violence and inform other workers of the likelihood for interaction with these workers, as well as their triggers for violent episodes.
This risk assessment, properly completed, must be communicated to the organization’s committee for health and safety or, if that committee does not exist, to the workers themselves.
2) Creation of workplace violence and workplace harassment policies
Employers must prepare a policy for both workplace violence and workplace harassment. These policies can be combined and incorporated into pre-existing harassment, discrimination, or conduct policies, if appropriate. If six or more workers are employed at a workplace, these policies must be in writing and posted openly at the workplace. Organizations with fewer than six employers must still have these policies – but they do not necessarily have to be written or displayed openly. Nonetheless, they must be communicated to employees and employers need to think about how they can show/confirm such communication.
The workplace violence policy must demonstrate the employer’s commitment to protecting workers from workplace violence. It must also outline the role and responsibilities of persons in the workplace who are involved with supporting the workplace violence program. Notably, the policy must identify possible sources of workplace violence – even when these sources are not part of the workplace. That is, workplace violence might take place in a parking lot, on a sport field or some other locale – even during the drive home from the office depending on the nature of the identified threat (and this, of course, would be rare but, as we all know, not improbable given the nature of the threat). For a sport organization, the possible sources of workplace violence go beyond fellow paid staffers. Other possible sources of workplace violence include volunteers (including coaches and officials), players, parents, and fans.
Similar to the workplace violence policy discussed above, the workplace harassment policy must show the employer’s commitment to protecting workers from workplace harassment. Sources of workplace harassment must be considered, roles of staffers involved with implementing the policy must be explained, and both policies must be dated and signed by the highest level of management present at the workplace.
3) Implementation of workplace violence and workplace harassment programs
Once an assessment of the risks for workplace violence has been conducted, and once policies for workplace violence and workplace harassment have been created, the employer must commit to implementing measures for reporting, investigating, controlling, and reducing instances of workplace violence and workplace harassment.
The workplace violence program must include:
a) Measures to control the risks of workplace violence (which were identified in the risk assessment stage). These measures would include: safe work procedures, distribution of personal protective equipment, designating safe locations at the workplace for emergency situations, procedures for advising workers about potentially dangerous situations, and limiting the physical locations at the workplace where violence could occur (e.g., opaque windows, dark corners, etc.). Training programs for adhering to the policy would also be part of these measures.
b) Measures for summoning immediate assistance. These measures may include emergency telephones, emergency email addresses, or equipping workers with personal alarms, pagers or cellphones
c) Measures for reporting incidents. These measures would help workers determine how to report workplace violence, to whom (listed on the policy), if any forms are required, or if any outside group (e.g., police, Ministry of Labour, etc.) requires notification of the incident.
d) Procedures for how the employer will investigate and deal with incidents. These procedures will guide employer actions for how and when investigations will be conducted, who and what will be included in the investigation, the roles and responsibilities of the people involved, how the incident will be recorded, and how any decisions will be resolved and enforced.
The workplace harassment program would include the final two points from the list above – the measures for reporting incidents and the procedures for investigating and dealing with incidents. Both the workplace violence program and workplace harassment program may be combined into a single program. The programs should also include a mechanism for informing workers of the program (e.g., a training program) and also documentation of any meetings about workplace violence or workplace harassment training or implementation. The policies and programs must also be reviewed or updated annually or bi-annually.
What else from the Act is important?
The updates to the Act also highlight the possibility of domestic violence spilling into the workplace and how employers can manage this potential risk. Further, the Act guides employers about when and why workers can refuse to come to work if they are concerned about workplace violence or workplace harassment and the appointment of a health and safety committee or representative.
Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(3)