Ontario workplace violence bill and threat assessment take two – the domestic violence provision

10 Mar

I posted yesterday about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers and my theory that it is most significant because it requires good threat assessment processes. The other provision that is getting talk is the so-called “domestic violence provision.” This, in my view, is an even more direct invitation to embrace good threat assessment processes.

Come June 15th, section 32.0.4 of the OHSA will read:

If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This has people asking, “What is domestic violence?”

The term “domestic violence” has caused a distraction in my view. It is dangerous because it could lead people to get tied up in a mental knot about the variety of violence associated with a threat rather than the threat itself. While I don’t mean to discount the problem of domestic violence in the workplace and the special challenges it raises, the answer to the question above does not likely affect employer duties.

This is because it is not plausible that a threat of physical injury from violence simpliciter deserves any less management than a threat of physical injury from domestic violence. The provision therefore could have read:

If an employer becomes aware, or ought reasonably to be aware, that violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This would have been very nice language – subject to interpretation but at least clear in its intent. And if the legislature did want to signal to employers that the risk of domestic violence in the workplace is no less their responsibility to address than the risk of violence simplicter in the workplace, it could have included a deeming provision specifying that “violence” includes “domestic violence.” In my view, the duties arising from such language would have been the same as those to be confirmed by the Bill 168 provisions come June.

This brings us back to threat assessment. Distracting language aside, section 32.0.4 speaks about acting based on facts that ought reasonably be known. It signals that employers should (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time. These basic prescriptions go for all kinds of violence, domestic and otherwise.

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