It s a Legal Matter: AODA, Workplace Violence and Legal Developments at the WSIB

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1 It s a Legal Matter: AODA, Workplace Violence and Legal Developments at the WSIB Health and Safety Symposium: Creating a Workplace Culture of Excellence March 24, Yonge Street Suite 3300 Toronto, Ontario M5B 2L7 Tel Fax Hour

2 Agenda AODA Reminders Workplace Violence What it is & what it is not? Employer & Employee Obligations Legal Developments at the WSIB Bill 18 Update Traumatic Mental Health Claims 2

3 AODA Reminders 3

4 AODA & Accessibility Standards AODA is umbrella Accessibility Standards provide content: Customer Service Standards Integrated Accessibility Standards: Information and Communications Standards Transportation Standards Employment Standards Design of Public Spaces Standards 4

5 Customer Service Standards Jan. 1, 2012: Compliance deadline Dec. 31, 2012: File online compliance report Organizations with 20+ employees Application: Provide goods or services (directly or indirectly) to the public or to other third party organizations in Ontario 1 or more employees 5

6 Integrated Accessibility Standards Application & compliance deadlines depend on classification Ontario Government & Legislative Assembly Large Designated Public Sector (50+) Small Designated Public Sector (< 50) Large Organization (50+) Small Organization (<50) Compliance phased in between 2011 and

7 Past Compliance Deadlines ACCESSIBILITY STANDARD Accessible Emergency Procedures, Plans Public Safety Information Provide Individualized Emergency Response Information COMPLIANCE DEADLINE Large Jan. 1, 2012 Small Jan. 1, 2012 Large Jan. 1, 2012 Small Jan. 1,

8 Past Compliance Deadlines ACCESSIBILITY STANDARD COMPLIANCE DEADLINE Training Large Jan. 1, 2014 Small Jan. 1, 2015 Accessibility Plan Large Jan. 1, 2014 Small Exempt Self-Service Kiosk Large Jan. 1, 2014 Small Jan. 1, 2015 Web Accessibility Large Jan. 1, 2014 Small - Exempt 8

9 Past/Future Compliance Deadlines ACCESSIBILITY STANDARD COMPLIANCE DEADLINE Compliance Reporting Large December 31, 2014 Small Partially Exempt Training Large Jan. 1, 2015 Small Jan. 1, 2016 Feedback Procedures Large Jan. 1, 2015 Small Jan. 1,

10 Future Compliance Deadlines ACCESSIBILITY STANDARD Accessible Formats and Communication Supports COMPLIANCE DEADLINE Large Jan. 1, 2016 Small Jan. 1, 2017 Employment Standards Large Jan. 1, 2016 Design of Public Spaces Standards Small Jan. 1, 2017 Large Jan. 1, 2017 Small Jan. 1,

11 Accessible Formats and Communication Supports Applicable to information about organizations goods, services & facilities Provide upon request Timely manner at no additional cost Consult with person with disability Notify public of availability Recall exempt information 11

12 Employment Standards Notification about availability of accommodation: Recruitment Assessment/selection (individual assessment and accommodation required) Proactive obligation on employers Manner of notification not prescribed 12

13 Employment Standards Notify new & existing employees of policies on accommodating employees with disabilities Manner of notification not prescribed Notification options: Verbal Onboarding information package Orientation/training Employment Contracts 13

14 Employment Standards Upon request employer must make accessible information: Required to perform job; and Generally available to employees Examples: Human resources/health and safety policies Newsletters/information bulletins Training materials 14

15 Employment Standards Individual accommodation plan ( IAP ) & return to work plans ( RWP ): Small Organizations exempt Must document process for development 15

16 Employment Standards Process for development of IAP must address: Employee participation in development of plan Manner of individual assessment Employer requests for evaluation by external medical or other expert Involvement of employee representative (i.e. union or colleague) 16

17 Employment Standards IAP must address (cont d): Protection of employee privacy Frequency and procedure for review/update Communication of reasons for decision to deny employee individual accommodation plan Providing plan in accessible format 17

18 Employment Standards Process for development of RWP must: Outline steps to facilitate return to work Incorporate IAP Does not replace or override procedure applicable under WSIA 18

19 Employment Standards Take accessibility needs of employees into account when engaging in: Performance Management Career Development Redeployment 19

20 Violence in the Workplace Legislative Background 20

21 Workplace Violence & Harassment Occupational Health and Safety Act ( Bill 168 ) Imposes obligations on workplace parties to reduce risk of, & address incidents of, harassment & violence Human Rights Code Prohibits discrimination & harassment in employment 21

22 Bill 168 Response in part to Hotel-Dieu Grace Hospital Amendment to OHSA Effective June 15, 2010 Employers must take every precaution reasonable in the circumstances to protect the health & safety of their workers Includes taking reasonable precautions to prevent workplace violence & harassment 22

23 Bill 168 Workplace Violence (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker. (c) a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker 23

24 Bill 168 Workplace Harassment Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome 24

25 Bill 168 Variety of sources, including Co-workers, including supervisors Patients & their families No requirement of prohibited grounds motivation or adverse-impact Broad enough to include harassment prohibited under the Code, as well as "psychological harassment" or "personal harassment" 25

26 Human Rights Code Employers obligated to prevent/protect employees from harassment Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of [protected grounds] 26

27 Human Rights Code Harassment A course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome based on one of the protected grounds 27

28 What are the Grounds? Race Ancestry Place of origin Colour Ethnic origin Citizenship Creed Sex Sexual orientation Age Record of offences Marital status Family status Disability Gender identity/expression 28

29 Sexual Violence and Harassment It s Never Okay: An Action Plan to Stop Sexual Violence and Harassment Strengthen legislative provisions relating to sexual violence and harassment Enhancement of workplace laws to strengthen enforcement under the OHSA Code of Practice (under OHSA) to assist employers develop stronger sexual harassment policies 29

30 Sexual Harassment: What is it? Unnecessary physical contact Unwanted touching Sexual remarks/jokes Posters/images Sexual language Repeatedly asking for dates (not accepting no ) 30

31 Sexual Harassment: What is it? Asking co-worker for something sexual or romantic & offering some benefit in return Threatening employee if they don t respond to sexual advances Bragging about sexual prowess Making sex-related comments about a persons physical characteristics or actions 31

32 Case Study: Poisoned Workplace J.D., E.D. & C.D. v The Ultimate Cut Unisex (2014 HRTO 956) HRTO awarded 3 employees total exceeding $150,000 Salon co-owner, Valentini, accused of harassing female employees Co-owner, Paul Portelli, turned a blind eye Conduct was egregious 32

33 The sexualized atmosphere created by Mr. Valentini's serious harassment, advances and solicitations was so intolerable that it formed a poisoned environment. This conclusion is based in particular on the fact that the organizational respondent ought to have known that Mr. Valentini was sexually harassing the applicants, contrary to the Code. 33

34 Violence and Harassment: What is it not? Reasonable imposition of discipline Performance evaluations Policy implementation Responding respectfully to questions/concerns from a boss/co-worker Ask yourself: does it serve a legitimate workrelated purpose? 34

35 Employee & Employer Obligations 35

36 Employer/Supervisor Obligations Take all reasonable precautions to prevent harassment, violence & bullying Employers will generally be liable for conduct of its officers, officials, employees or agents Employers may also face exposure if they fail to investigate allegations of harassment or take steps to prevent against others forms of violence, harassment or discrimination occurring in the workplace 36

37 Employer/Supervisor Obligations Establish policies & procedures that address violence, harassment & discrimination Bill 168 Post in conspicuous place Ensure all employees are aware of policies & procedures Encourage reporting of complaints Report where necessary (e.g. MOL, WSIB) 37

38 Employee Obligations Workers (i.e. employees, contractors, etc.) have obligation to work in compliance with the law I.e. they have to conduct themselves in a way that is not considered violent or harassing Workers have obligation to report incidents of workplace violence or harassment to manager Including domestic violence if it may come into the workplace 38

39 Employee s Right to Refuse Work As with other health & safety issues, a worker has the right to refuse work if s/he believes workplace violence (not harassment) is likely to endanger him/her Until investigation is complete, employee refusing work needs to be in a safe place & available for the purposes of the inspection 39

40 Adjudicator Will Consider Procedures in place at time How quickly employer responded How seriously complaint was treated Resources made available to deal with complaint Whether employer provided a healthy environment for complainant How well complainant was kept informed 40

41 Pitfalls Turning a blind eye Not holding managerial or supervisory employees accountable Not taking claims of harassment seriously Not investigating claims properly 41

42 Legal Developments at the WSIB 42

43 Bill 18 Stronger Workplaces for a Stronger Economy Updated version of Bill 146 Royal Assent Nov. 20, 2014 Amends 5 labour & employment-related statutes Transitional & commencement provisions 43

44 Bill 18 WSIA Amendments Proposed changes to Bill 18 not passed but subject to later possible regulations Temporary help agencies are deemed to be the employer of the temporary worker [A]n employer who temporarily lends or hires out the services of a worker to another employer remains the employer of that worker. WSIAT Decision No 2186/09 (2010) 44

45 Bill 18 WSIA Amendments Bill 18 proposed if a temporary worker injured while working for client employer, the WSIB: Attributes injury & accident costs to client employer (e.g. LOE, NEL, WT) & Adjusts client employer s surcharge &/or rebate Reporting obligations Definition of temporary help agency added 45

46 Bill 18 WSIA Amendments Unanswered questions Which employer will be responsible for the premiums? Which employer has return to work/reemployment obligations? Proposed amendments to the WSIA were ultimately removed, but may be subject to future regulation 46

47 WSIAT Decision No. 2157/09 The Worker worked in a hospital for 28 years Alleged: 12 years she was subject to ill treatment by a doctor the doctor's conduct resulted in her being diagnosed with an adjustment disorder with mixed features of anxiety and depression. Worker claimed she was unable to work and sought benefits 47

48 WSIAT Decision No. 2157/09 13 (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress. (5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. 48

49 WSIAT Decision No. 2157/09 WSIB denied the worker's claim for benefits Was not "an acute reaction to a sudden and unexpected traumatic event." Worker appealed to the WSIAT Argued ss. 13(4) and (5) were unconstitutional 49

50 WSIAT Decision No. 2157/09 WSIAT agreed WSIAT held that the worker was entitled to benefits for chronic mental stress Did not comment on the portion of subsection 13(5) that precludes entitlement for mental stress arising out of decisions or actions of the employer relating to the employment relationship. 50

51 WSIAT Decision No. 2157/09 Decision significantly expands the scope of entitlement for mental stress Will put increased pressure on employers to limit and address stressors in the workplace BUT may not have an immediate impact on decisions made by adjudicators at the WSIB level 51

52 250 Yonge Street, Suite 3300 Toronto, Ontario, Canada M5B 2L Phone Hour Fax 52

53 The information contained in this presentation is provided for general information purposes only and does not constitute legal or other professional advice. Reading this presentation does not create a lawyer-client relationship with Sherrard Kuzz LLP. Readers are advised to seek specific legal advice from members of Sherrard Kuzz LLP (or alternate legal counsel) in relation to any decision or course of action contemplated. 53

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