Few Ontario workplaces will have complied with new workplace violence and harassment legislation by the time it comes into force this week, employment lawyers say.
Bill 168, which amended the Occupational Health and Safety Act, received Royal assent in December. It gave employers six months to comply, but many have left it until too late.
“Employers are having real difficulties with the amount of requirements and they won’t be ready for June 15,” says Meghan Ferguson, who has conducted Bill 168 workshops for clients at Hicks Morley Hamilton Stewart Storie LLP.
Doug MacLeod, who is in charge of Bill 168 files for Barrie, Ont., firm Graham Partners LLP, says some employers have no idea about their obligations.
“I suspect many small- and medium-size companies are not aware that Bill 168 is coming into effect in less than two weeks and therefore will not be in a position to comply by June 15.”
Lisa Stam of Baker & McKenzie LLP says larger firms with their own human resources departments have a greater awareness about the bill’s requirements but notes even they are struggling to comply.
“Businesses are certainly turning their minds to it now, but I don’t think everyone will have everything ready to go by June 15.”
The amendments require employers to conduct a risk assessment for violence and harassment in the workplace. They then must develop policies addressing the risks identified and train staff on them.
“I do think most will have started with some of the basics, like getting their policy in place and figuring out how to do the assessment,” Stam says. “Not everyone will have completed their training and the assessment.”
Stuart Rudner, a partner at Miller Thomson LLP, says the proactive approach required by Bill 168 makes it unique but also more susceptible to breaches.
“There are a lot of people out there who think this is another piece of legislation where you can just adopt a wait-and-see approach. Many of them don’t realize that Bill 168 requires positive steps on the part of employers. By waiting and seeing, they’re breaching the legislation.”
Wayne De L’Orme, a provincial co-ordinator with the Ministry of Labour, says he hopes employment lawyers have got it wrong.
“I’m much more optimistic than most people about the level of compliance when we get to June 15,” he says. “I hope I’m right.”
Premier Dalton McGuinty’s government introduced the legislation in part in response to the murder of nurse Lori Dupont in 2005. Dupont’s former boyfriend, Dr. Marc Daniel, stabbed her to death at the Hôtel-Dieu Grace Hospital in Windsor, Ont.
The facility was aware of repeated and escalating harassment by Daniel, an anesthesiologist, but failed to discipline him. The pair were scheduled to work together on the day he killed her.
The harassment issue hit the news earlier this month following criticism of the City of Mississauga’s response to allegations of hazing in the workplace.
Alex Juani, a worker in the transportation and works department, said his complaints of harassment weren’t taken seriously and has been on stress leave for eight months. A city investigation dismissed the incidents as “horseplay” and resulted in no firings.
Ron Minken has seen a surge of interest in the issue in recent weeks at his employment law firm. “People I think now are really scrambling,” he says. “It’s surprising that employers are only taking steps now to comply given that the legislation was passed last December and given the harsh sanctions for a breach.”
The health and safety act allows for fines of up to $500,000 for companies and up to $25,000 or 12 months’ imprisonment for individuals. Minken believes the uncertainty over the requirements and possible grace periods for enforcement have even caught some law firms unprepared. The bill applies to all employers, regardless of their size.
“I think the impression in the legal community is that only law firms of substantial size have to comply with Bill 168,” he says. “Any lawyer in this province who employs at least one worker, and by worker I mean volunteer, independent contractor, dependent contractor or employee, must be Bill 168 compliant.”
De L’Orme is happy to clear up any confusion over enforcement. He says the ministry has 430 inspectors in place for the deadline.
“We are at the end of the grace period. Starting June 15, we will be issuing orders. In the vast majority, we will be asking the workplaces how long they need to get into compliance. We would be tempering their estimation with the fact that they have actually had six months to get ready.”
De L’Orme says no blitzes are planned, but inspectors will question employers and employees on their knowledge of harassment and workplace violence policies as part of routine inspections.
At Gowling Lafleur Henderson LLP, paralegal and occupational health and safety consultant Cathy Chandler is spending “110 per cent” of her time on Bill 168 issues.
“We’re getting lots of last-minute calls and unfortunately at this point telling them we’re happy to help but we can’t bring you into compliance by June 15,” she says. “First, we schedule the risk assessment. Then I’m telling employers at least to have a training plan in place as to how you’ll take the employees through the policies.”
The government could have helped the situation by providing more guidance to employers and lawyers, according to Rudner. A Bill 168 tool box on the ministry web site arrived in May, and even then its value was limited, he says.
“Where it comes down to a contentious issue, they simply advise people to consult a lawyer. I certainly appreciate that, but it doesn’t give either the employer or the lawyer much in the way of guidance.”
At Hicks Morley, Ferguson says some of her clients couldn’t have complied even with the help of the tool box. School boards, for example, had already set their budgets for 2009-10 by the time the bill passed.
“For a lot of those employers, it probably would have taken them a good year to be well on their way to having a program ready,” she says.
“It wasn’t really fair with the one-size-fits-all model where a simple employer with low risk of workplace violence got six months, but the employer that has higher risk and many different workplaces also only got six months.”
