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Bill 168 provision poses interesting questions

As of June 15, Section 32.0.5 of Ontario’s Occupational Health and Safety Act will require employers in Ontario to provide workers with “information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour, if the worker can be expected to encounter that person in the course of his or her work and the risk of workplace violence is likely to expose the worker to physical injury.”


May 25, 2010
By Brian Robertson

Topics

When this provision comes into force, Ontario will join three other
provinces (British Columbia, Manitoba and Nova Scotia) in making it a
legal requirement for employers to inform other workers about workers
who have a history of violence.  

These kinds of provisions, which seem reasonable enough when you first
hear about them, raise more questions than they answer.  Here are some
of those unanswered questions.

1.    What sort of objective criteria could an employer possibly use to
determine who does and who doesn’t qualify for classification as  “a
person with a history of violent behaviour?” (PWAHOVB.) What sorts of
violent behaviour are we talking about? How long ago? In what
contexts?

2.    If compliance with this provision requires an employer to
maintain a list of workers who do qualify for classification as
PWAHOVBs (and it does), do workers who are on this list have a right to
know that they are on the list?  Could any worker be on the list for
very long without finding out about it from somebody else anyway?

3.    If a worker becomes aware that he or she has been classified as a
PWAHOVB, and thinks that the designation is unfair, does he or she have
a right to challenge the designation?

4.    How can an employer possibly determine how much information they
should and should not pass on to other workers regarding the presence
of a PWAHOVB?

5.    If compliance with this provision requires an employer to decide
— in the case of each PWAHOVB — which employees do and which employees
don’t need to know about the threat posed by the PWAHOVB, what happens
when one of the workers to whom the information has been given shares
it with a worker to whom it has not been given, and the latter
complains about not having been told?

6.    Employers are not permitted to give workers any more information
about a PWAHOVB than is necessary to protect those employees from the
threat of workplace violence.  But does an employee who feels that he
or she has not been given enough information about the PWAHOVB have a
right to ask for more?

7.    If a worker exercises his or her right to refuse unsafe work by
refusing to work with a PWAHOVB after he or she has been notified about
him, is the employer then compelled to tell everybody who works with
the PWAHOVB that he is one, under the provisions of the Act which
compel employers to tell workers about hazards which have become the
subject of work refusals?

8.    How can a company go around telling groups of its employees that
certain other employees have a history of violent behaviour without
running afoul of other provincial and federal privacy laws?

None of these questions has been answered. Or rather, none except one.
In March the province published a guidebook called Workplace Violence
and Harassment: Understanding the Law to explain some of the trickier
parts of  Bill 168. In this guidebook — and in response to question No.
8 — the province acknowledges there may well be a direct conflict
between the notification requirements in Bill 168 and the protection of
privacy provisions under several other statutes. To resolve this
conflict, they offer the following helpful suggestion:
“In such cases, employers may wish to seek legal advice.”
No kidding. Points at least for honesty.

Brian Robertson is the president of Diligent Security Training and Consulting.


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