WORKPLACE VIOLENCE: LEGAL OBLIGATIONS AND RESPONSIBILITIES November 30, 2005 Health Care Health and Safety Association of Ontario Eric M. Roher Partner Borden Ladner Gervais LLP phone: 416-367-6004 email: eroher@blgcanada.com

What is Workplace Violence? “Any action, act, omission or incident in which an employee or worker is abused, threatened, harmed, injured or assaulted arising out of his or her employment or work … ” Norman Keith Canadian Health and Safety Law

What is Workplace Violence? (continued) “Any act of aggression that causes physical or emotional harm, including assault (any attempt to inflict physical harm on a worker), threat, verbal abuse, sexual harassment, and racial or religious harassment.” Ontario Public Service Employees Union

Violence includes: Assault (threat or injury) Battery (unlawful force) Threats (intent to harm) Sexual harassment (unwelcome advances) Verbal abuse Ontario Nurses’ Association

Violence also includes: Name-calling Swearing Hitting Biting, scratching and pinching Using a weapon British Columbia Nurses’ Union

Statistics and Trends More than ½ of Registered Nurses have been physically assaulted in the workplace. Study from the Registered Nurses’ Associations in Manitoba and Ontario

Statistics and Trends (continued) Of 400 Nurses surveyed, 63% had experienced verbal abuse in the past year. 35% experienced attempts at physical harm. 21% had been victims of physical attack. Nova Scotia Study

Statistics and Trends (continued) Of 800 Ontario Nurses surveyed, 59% had been physically assaulted on the job in their career. 35% in 12 months prior to the survey. Ontario Nurses’ Association, 1995

Statistics and Trends (continued) Younger clinicians and nurses are more often the target of client aggression, due to limited experience and lack of training. Health care workers face similar level of risk to that of police. (Boyd 1995)

Common Law Principles Negligence. Duty of care, breach, causation, and damages. Protect individuals from reasonably foreseeable risks of injury. Legal principles inform violence prevention and emergency response strategies.

Burden of Proof Burden of proof is on the plaintiff to show, on the balance of probabilities, that the defendant did not meet the standard of care of a reasonable person in given circumstances.

Elements of Negligence Defendant owed a duty of care to the plaintiff. Defendant breached the duty of care. Defendant’s breach was cause of plaintiff’s injury. Plaintiff suffered actual damage or loss as a result of the injury.

Foreseeability Key in determination of whether an employer had legal responsibility to take action. Not only what an employer knew, but also what it ought to have known. Employer took reasonable steps to reduce risk of injury/accident.

Applicable Legislation Occupational Health and Safety Act Workplace Safety and Insurance Act Ontario Human Rights Code Compensation for Victims of Crime Act Regulated Health Professions Act Criminal Code (Canada)

Laws established Violence is unacceptable. Offenders are liable for their actions. Victims or relatives may be compensated for injuries resulting from an act of violence. Duties and responsibilities for all workplace parties.

Occupational Health and Safety Act The OHSA came into force in 1979. Designed to set administrative, legal procedural standards for health and safety in Ontario’s workplaces. Achieves these ends through an “internal responsibility system.” Places responsibility for health and safety on the stakeholders by creating duties for employers, supervisors and workers.

OHSA – Employer’s Duties Employer shall provide information, instruction and supervision to a worker to protect his/her health and safety – s.25(2)(a). Employer must take every reasonable precaution under the circumstances for a worker’s protection – s.25(2)(h).

OHSA – Employer’s Duties (continued) Employer must prepare and review, at least annually, a written occupational health and safety policy. Must develop and maintain a program to implement that policy – s.25(2)(j).

OHSA – Supervisor’s Duties Supervisor shall advise a worker of any potential or actual danger to the worker’s health and safety of which the supervisor is aware – s.27(2)(a). Supervisor shall provide a worker with written instructions about protective measures and procedures – s.27(2)(b). Supervisor shall take every reasonable precaution in the circumstances for the worker’s protection – s.27(2)(c).

OHSA – Worker’s Duties Workers are required to report to his or her employer or supervisor the existence of any hazard – s.28(1)(d). The requirement is interpreted to include any threat of violence or presence of a violent person.

Ministry of Labour - Inspectors Have the authority to issue work orders and stop-work orders. Have exercised this authority when they deem that a hazard exists because of inadequate staffing levels. Will determine if employee has been provided suitable training and policies to protect from workplace violence.

Adjudicators Have ruled that health care workers are entitled to information about aggressive or violent clients. Have ruled that employers must provide adequate staffing levels as a protective measure.

Risk of Violence Where inspectors determine that workers are exposed to a risk of violence, will direct the employer: to address the risk to assure appropriate workplace program is implemented that the joint health and safety committee be consulted in workplace violence prevention program

Ontario Human Rights Code Harassment is a prohibited activity under the Code. Employee has a right to freedom from harassment in the workplace because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.

Human Rights Code Harassment is defined as: “engaging in a course of vexatious comment or conduct that is known or ought reasonably known to be unwelcome.” Harassment includes inappropriate comments, jokes or suggestions. Sexual harassment includes unwanted touching.

Human Rights Code (continued) Employers must prevent or stop harassment in the workplace. Workers have a right to file a complaint with the Ontario Human Rights Commission. Employers cannot penalize a worker who has filed a complaint.

Criminal Code Assault is determined as: Intentional application of force to another person without that person’s consent. Includes attempts or threats to use force, including gestures that imply a serious threat.

Criminal Code (continued) If the police lay a charge under the Criminal Code, the Crown Attorney will prosecute the case. The victim will be called as a witness. Standard of proof is “beyond a reasonable doubt”.

Risk Management Risk management is the process of planning, organizing and controlling activities that contain an element of risk of injury to the worker.

Risk Management involves the following steps: Identify and assess exposures to injury. Identify various risk management strategies to address these exposures. Select and implement the appropriate strategy or strategies. Monitor results and make improvements where necessary.

Health workers are especially at risk when: working alone, especially at night interacting with violent clients dealing with public complaints providing care and advice that impact on a client’s life handling money or medications

Other practices that increase vulnerability to violence: understaffing in busy clinics or emergency departments letting staff work alone with clients having staff work at night in high crime areas failing to provide sufficient training failing to provide communication devices

Develop a Workplace Violence Prevention Program 1. Obtain management commitment and employee involvement. 2. Develop a policy, with clear goals and objectives. 3. Conduct a worksite risk assessment.

Develop a Workplace Violence Prevention Program (continued) 4. Put violence prevention, control and response measures in place. 5. Educate employees about the program and train them. 6. Evaluate the program and procedures.

Environmental Design Provide a calm atmosphere. Ensure furniture can not be used as a weapon. Keep areas well lighted. Maintain secured areas where public access is limited. Eliminate overcrowding in psychiatric facilities. Install and use security systems.

Program Objectives Develop a policy of “zero tolerance” for workplace violence. Describe the standard of behaviour expected of all persons in the workplace. Provide a mechanism that encourages employees to report all incidents promptly. Develop a plan for maintaining security.

Program Objectives (continued) Develop understood and communicated sanctions for violent acts. Train workers regarding the forms of workplace violence, its effects and how to prevent it. Provide for a procedure to review incident reports. Continually re-evaluate existing safety procedures.

Conclusion To create major changes in the workplace, the organization needs: a sense of urgency; a guiding coalition; and vision and strategy.

Conclusion (continued) Commitment of the employer to make workplace violence prevention a priority. Organization’s management team must recognize the need to change. Overall will and allocation of resources to create a workplace violence prevention program and communicate it to stakeholders.

“Someone has to do it and it is appallingly pathetic that it has to be us.” Jerry Garcia

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