Compliance with employment laws can be a challenge in the workplace. Bill 168 raises the bar even highter.

When a disgruntled former employee showed up at an OC Transpo workplace in Ottawa, Ontario, and opened fire on his co-workers, it struck a blow to more than just those directly affected by the 1999 workplace incident. And when a Windsor, Ontario, nurse was stabbed to death at work by her former boyfriend in 2005, it was clear that more needed to be done to protect employees at work. Although there was federal legislation already in place, it wasn't applicable to provicially regulated employers and therefore didn't protect all Ontario employees from workplace violence.

And so it was that Bill 168, Preventing Workplace Violence and Harassment, was created. But what began as a necessary and powerful piece of legislation has become a logistical and financial nightmare for Ontario employers since its introduction in June of 2010.

Are you compliant?

“I would guess that 95 per cent of employers are non-compliant,” says Stephen Bird of Bird Richard, an Ottawa law firm that specializes in employment and labour law.

“It’s a good piece of legislation, it’s designed to protect. But compliance comes at a very significant investment of time, human resources and money. And most employers haven’t got spare cash to invest in policies and procedures,” he says.

The new legislation requires a policy with respect to workplace harassment as well as workplace violence. “It’s significantly more comprehensive insofar as it includes domestic violence. If there’s any indication of domestic violence which may manifest itself in the workplace, there’s an obligation on employers to be vigilant for that as well,” says Bird. “It’s a very comprehensive piece of legislation, but the amount of work to do it properly by an employer is staggering.”

You can buy a template policy for a few hundred dollars, but Bill 168 is all about due diligence and risk analysis. You have to be able to identify the potential risks in the workplace and without doing that thoroughly and specifically any generic policy will be useless.

Assessing Risk

While Bird suggests having an outside party assess your company’s risk, the following steps can provide the basis for doing your own risk assessment:

1. Talk to the police to find out what the incidence of crime is in the region, or how many people get assaulted in your part of town.
2. Contact your landlord to find out what security measures are in place, what time the doors are locked and what type of access there is. Ask how many incidents have they had in the building.
3. Assess your staff. Examine their circumstances. What type of people do you employ? What about an employee who is going through marital problems or has a drug problem? How is that going to translate into a potential scene of violence?
4. And lastly, examine your systems. Assess the training you have in place to deal with violence. Is there a procedure for handling a violent encounter? Is there a procedure for terminations and where you conduct them? Do you do it near the doors so that you can easily get them out? Do you notify security to cancel their access? Do you have security escort them out?

These steps are just the beginning of a full risk assessment, but they show how detailed you need to be in the examination of your business to assess all the risk factors for potential problems.

“You’re never going to prevent every incidence of violence,” says Bird. “It’s about anticipating reasonable risk and taking reasonable precautions.”

It’s an ongoing process, says Bird, but the consequences of failure to comply, should something unthinkable happen in your workplace, are dire. “Senior executives can go to prison for a long time if they are not taking reasonable precautions. Due diligence is everything,” he says.

The Road to Compliance

If you can be seen to have taken every reasonable precaution to prevent workplace violence, you’ll have a valid defense if something happens. Bird outlines five steps that every employer should take:

1. Risk Assessment – Have a qualified external party come in and assess the risks that your employees could potentially face in the workplace. (This applies only to violence, as there is no requirement to assess for harassment risk.) The assessor should ask questions about every aspect of your business. What type of people do you hire? Do you have a history of scuffles on the work floor; do the employees have a history of being locked up for drunk and disorderly on the weekend; what do you know about your work force? What do you know about your area, your product and the customers you serve?
2. Training – Once you’ve identified the risks, figure out what employees need to know and what they should do in every situation. Identify a training plan and ensure everyone in the organization is trained. In some organizations it’s too expensive to have someone from outside train all staff. Unless you have the resources or experience in training, Bird suggests having someone come in to “train the trainer(s)” who can then train the rest of your staff.
3. Policies and Procedures – Develop and document policies and procedures. Policies are the easiest part of compliance with Bill 168, says Bird. It’s the procedures that take the time and effort. Employees need to know what to do in every situation. And they need to know the procedures before something happens. They will not have time to look up what to do when faced with a violent situation.
4. Research - Look at what everyone else in your industry is doing. Research best practices for your industry. Share information regularly with others in your field. Join and participate in organizations. Discuss issues with your network and find out how they are dealing with compliance. Share your concerns, methods and solutions and learn from those of others. The one-year point is June 2011. You must get best practices in place by then, advises Bird.
5. Updates - You are required by law to update your policies every year. You’ll need to update your crime statistics, training efforts, any employee job changes, new or changed risks and training. What are you doing about it? “From my observations, the answer is very little,” says Bird.

Reasonable Effort is Key

“The long and short of it is that you can’t do everything right,” says Bird. “You have to do the best you can based on the risks you can identify.” As long as you can prove you took every reasonable effort to prevent workplace harassment and violence, including following the steps above, you’ll have a defense should you ever need one.