HR and Payroll Legislation Updates
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Significant Changes to Ontario's Health and Safety Legislation Impacting ALL Employers

On December 15, 2009, the Government of Ontario gave Royal Assent to Bill 168, otherwise known as the Occupational Health and Safety Amendment Act, (Violence and Harassment in the Workplace), 2009 ("the Act"). This piece of legislation signals a nation-wide trend regarding the regulation of violence and harassment in the workplace. Ontario is the latest province to enact such measures, joining the Federal jurisdiction, as well as British Columbia, Alberta, Saskatchewan, Manitoba, Prince Edward Island and Nova Scotia.

So What's Changed?

Firstly, "workplace violence" and "workplace harassment" have been added to the definitions included in the Occupational Health and Safety Act. As a result, both terms are now defined as follows:

Workplace Harassment is defined as 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 Violence - is defined as follows:

(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 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

Employers are now required to take proactive measures including the establishment of applicable policies and programs as well as risk assessments. It's important to note that the definition of workplace harassment is not limited to the prohibited grounds within the Ontario Human Rights Code. Secondly, the definition of workplace violence may in certain circumstances be considered to include claims of psychological harm.

Policies: A Must

Employers are now required to prepare written policies dealing with workplace violence and harassment. In light of the new definitions, existing policies will need to be modified.

Risk Assessment And Reassessments

Employers are now required to conduct assessments regarding the risk of violence at work. In conducting such assessments, employers should be mindful of industry and workplace-specific risks. Finally, employers are required to reassess these risks as often as necessary . Employers must also advise employees of the results of these assessments and reassessments.

Workplace Violence Prevention Program

Employers are required to establish a program that addresses instances of workplace violence. This program should be designed to control the risks that have been identified in the employer's workplace assessment. The program must include the following:

• A protocol for seeking immediate assistance where violence occurs
• A reporting protocol for employers to report incidents of workplace violence
• An investigative process

Domestic Violence

An employer is now required to take measures to protect employees where it knows, or ought to have known that an employee has been subject to domestic violence.

Persons With A History Of Violent Behaviour

Employers are now obliged to provide information to employees pertaining to the violent histories of their co-workers where there may be a risk of violence.

Refusal To Work

Where an employee has reason to believe that there is a potential for violence in the workplace, he or she may refuse to work.

What Next?

The Act comes into force June 15, 2010. It's likely that your existing workplace harassment and violence policies will require material revisions.

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Criminal Background Checks - An Update

Late last year, the Royal Canadian Mounted Police (the "RCMP") issued an interim policy directive outlining changes to how criminal records checks can be obtained. Of particular interest to employers are two changes:

(i) The role of third-party service providers in performing "vulnerable sector" criminal background checks; and

(ii) The nature of the information provided based on the traditional Canadian Information Police Centre ("CPIC") queries.

(i) Vulnerable Sector Checks - What's Changed?

In the past, the "vulnerable sector" (i.e. social services, long-term care facilities, etc.) has relied on third-party service providers in order to obtain criminal background checks. As a result of the interim policy changes, such information can now only be released to the employer (i.e. the employer requesting the background check), but not to the candidate. Then, if a record actually exists, the RCMP now requires it to be confirmed through obtaining the individual candidate's fingerprints. Finally, once the record is confirmed, the results may only be released to the employer upon the prior written consent of the individual.

What does this mean?

For the vulnerable sector, this could mean delays. Vulnerable sector employers should secure finger prints and written consent as early as possible in order to expedite the process. Failing to do so could cause delays. Delays may impact your operations.

(ii) The Information Provided to Employers - Has it changed?

Yes. Whereas in the past, employers were provided with particulars as to an individual's criminal record, under the interim policy, they will simply be advised as to whether an individual's record is "clear" or "not clear".

What does "clear" or "not clear" mean?

While a "clear" record means that an individual candidate has no record of offences, a "not clear" result does not necessarily indicate the existence of a criminal record. The reason for this is that at present, CPIC queries are based on an individual's name and date of birth. In light of the possibility of individuals sharing the same name and date of birth, or where an individual has had a name change, the RCMP now requires further confirmation of a candidate's identity in order to provide more detailed information. In doing so, the candidate needs to personally attend at a local police station in order to provide fingerprints, as well as provide written consent to allow the results to be forwarded to the employer.

Why should we be concerned?

Again, this process may cause further delays in your hiring process. In order to make informed hiring decisions, more details are necessary. In many circumstances, offers of employment are conditional upon obtaining a satisfactory criminal record check within 30 days of commencing employment. Under the interim policies, obtaining a detailed background check, and attending at a police station for fingerprinting will take considerably longer.

What else should we be concerned about?

Human rights legislation in a number of provinces prohibits discrimination based on record of offences. Detailed information is necessary in order to assess whether an obligation to accommodate exists. Moving forward without detailed results may attract human rights liabilities.

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