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In response to the recent cases of violence against nurses at the Centre for Addiction and Mental Health (CAMH), the Ontario Nurses’ Association (ONA) has stated that nurses face an epidemic of workplace violence.
In December 2014, the Ontario Ministry of Labour laid charges against CAMH relating to an incident involving the alleged beating of a nurse “beyond recognition” by a patient in January 2014. Shortly after the charges were laid, another CAMH nurse was allegedly physically assaulted by an in-patient. ONA blames the workplace violence (which they claim is significantly on the rise) partly on issues such as lack of security and lack of risk assessments of patients.
The charges against CAMH, as well as other current prosecutions involving workplace violence, shine a spotlight on the adequacy of the workplace violence provisions under the Occupational Health and Safety Act (OHSA). The recent charges laid against CAMH under the OHSA include failing to provide sufficient information and supervision to protect a worker from workplace violence, and failing to implement measures and procedures to protect workers from workplace violence. The Ministry of Labour is also in the midst of a trial involving workplace violence charges laid against the Royal Ottawa Heath Care Group, and has recently laid charges against the Royal Ottawa Heath Care Group relating to a separate incident involving workplace violence.
2015 may therefore be a precedent-setting year for prosecutions relating to workplace violence as the Ministry and courts test the legislation. The outcomes of these cases may finally provide employers with more sufficient guidelines on the parameters of the measures and procedures for workplace violence programs.
Currently, employers must prepare a policy with respect to workplace violence, develop and maintain a program to implement the policy, and provide information and instruction to workers on the contents of these policies and programs. The workplace violence program must include measures and procedures for:
- Controlling risks identified in the assessment of risks;
- Summoning immediate assistance when workplace violence occurs or is likely to occur;
- Workers to report incidents of workplace violence; and
- How the employer will investigate and deal with incidents or complaints of workplace violence.
Employers must also proactively assess the risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work. Measures and procedures to control these risks must be included in the workplace violence program.
Employers have struggled with the specific parameters of the workplace violence provisions since the 2010 amendments to the OHSA. The Ministry chose not to outline the actual measures and procedures it could enforce, as it does in other hazardous areas. This gap in legislation leaves employers to guess whether their measures and procedures are reasonable for protecting the health and safety of workers. For example: Are employers required to install surveillance cameras in certain work areas, and provide security guards and additional staffing in certain work conditions? What are the minimum requirements for the physical layout of certain workplaces? What measures should be taken to control potential weaponry, particularly in high risk facilities such as CAMH?
Furthermore, without specific requirements for measures and procedures under the OHSA, prosecutors are forced to rely on vague charges such as failing to take every precaution reasonable in the circumstances for the protection of a worker. If this year’s prosecutions relating to workplace violence do not result in convictions, the Ministry may have to decide whether it is prepared to provide more guidance to employers and more tools for inspectors and prosecutors by amending the workplace violence provisions under the OHSA.
Takeaway for Employers
There is no question that employers are statutorily required to have policies and programs in place to protect its workers from workplace violence. As questions on specific measures and procedures to control workplace violence risks are debated and workplace violence laws are tested this year, risk assessments of workplace violence continue to be critical to the proper implementation of policies and programs, especially as workplace situations change. As today’s workplaces constantly evolve, employers can assume that workplaces should be regularly assessed to ensure policies and programs continue to protect its workers from workplace violence.
We will provide updates on the outcomes of the pending cases discussed above as they become available.
About the Author: Toronto Employment Lawyer Phanath Im practices in all areas of employment law. She is a former Ministry of Labour prosecutor with special expertise in occupational health and safety (OHS) matters. Phanath’s OHS practice includes defending workplace accident-related regulatory charges, accident response, reporting and investigation, and managing OHS inspections