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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: [email protected] What is Workplace Violence?.

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WORKPLACE VIOLENCE: LEGAL OBLIGATIONSAND 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: [email protected]


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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


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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


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Violence includes:

  • Assault (threat or injury)

  • Battery (unlawful force)

  • Threats (intent to harm)

  • Sexual harassment (unwelcome advances)

  • Verbal abuse

    Ontario Nurses’ Association


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Violence also includes:

  • Name-calling

  • Swearing

  • Hitting

  • Biting, scratching and pinching

  • Using a weapon

    British Columbia Nurses’ Union


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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


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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


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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


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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)


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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.


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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.


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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.


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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.


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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)


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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 forall workplace parties.


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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.


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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).


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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).


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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).


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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.


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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.


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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.


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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


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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.


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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.


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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.


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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.


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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”.


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Risk Management

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


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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.


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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


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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


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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.


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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.


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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.


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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.


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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.


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Conclusion

To create major changes in the workplace, the organization needs:

  • a sense of urgency;

  • a guiding coalition; and

  • vision and strategy.


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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.


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“Someone has to do it and it is

appallingly pathetic that

it has to be us.”

Jerry Garcia


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Thank You!

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