Bill 168 proposes to amend the Occupational Health and Safety Act to designate violence and harassment as workplace health hazards, and seeks to introduce measures to prevent and protect workers from workplace violence and harassment.

Employers have become conditioned to the necessity of keeping private and confidential, personal information they collect from their employees. In today’s world, for example, what employer would freely and “with no questions asked” disclose the contact or health information of an employee, upon receiving a request for same from an outside source? Employers even contact us about requests for employee information from law enforcement agencies, to ensure that they will not run afoul of privacy or other legislation by providing the requested information.

This hesitancy is the result of a developing public consciousness regarding personal privacy, supported by an ever-expanding regime of privacy legislation. Employers are wise to proceed cautiously before disclosing personal information without employee consent, not only because of the potential penalties and fines that may be imposed for improper disclosure, but also because of the negative impact upon employee relations that such disclosure may cause.

In at least one respect, however, personal privacy takes a backseat. This is where public safety would be jeopardized by failing to disclose personal information. Privacy legislation, including the provincial Freedom of Information and Protection of Privacy Act and Municipal Freedom of Information and Protection of Privacy Act, and the federal Personal Information Protection and Electronic Documents Act, has always included a general exemption permitting the disclosure of personal information where the health or well-being of an individual or individuals is at risk.

However, proposed amendments to the Occupational Health and Safety Act go far beyond this. In fact, the amendments which aim to address workplace violence and harassment by placing positive duties on employers, appear to be the first of their kind in Canada. Bill 168 proposes to amend the Occupational Health and Safety Act by including, in part, the following provisions:

• Domestic violence
  32.0.4 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.
• Duties re violence
  32.0.5 (1) For greater certainty, the employer duties set out in section 25, the supervisor duties set out in section 27, and the worker duties set out in section 28 apply, as appropriate, with respect to workplace violence.
• Information
  (2) An employer shall provide a worker with, (a) information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace violence; and (b) any other prescribed information or instruction.
• Provision of information
  (3) An employer's duty to provide information to a worker under clause 25 (2) (a) and a supervisor's duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if, (a) the worker can be expected to encounter that person in the course of his or her work; and (b) the risk of workplace violence is likely to expose the worker to physical injury.
• Limit on disclosure
  (4) No employer or supervisor shall disclose more personal information in the circumstances described in subsection (3) than is reasonably necessary to protect the worker from physical injury.

As indicated above, the proposed amendments would impose a statutory duty on employers to, among other things, disclose personal information regarding an employee’s propensity for violence to fellow employees where the 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.

Needless to say, the proposed amendments are highly controversial. The consequences for employers of “getting it wrong” are apparent. For example, if an employer withholds from co-workers personal information about an employee with a history of violent behaviour, and it is later determined that the timely disclosure of this information would have prevented harm or injury, aside from any penalties or fines that may be imposed upon the employer, the impact upon the employer’s reputation or upon employee morale may be devastating.

On the other hand, if an employer discloses personal information and it is later determined that the employer did not have sufficient reasonable grounds to do so, again aside from any penalties that are imposed, the employer’s business interests may be seriously undermined. The position of the employee whose personal information was improperly disclosed, may be permanently compromised in the workplace, leading to human rights complaints, resignations followed by claims of constructive dismissal etc. In turn, the employee’s co-workers may be unwilling to work with the employee in the future, fearing that the employee may be disposed to violent behaviour.

Bill 168 has only passed First Reading in the Legislature. However, the amendments to the Occupational Health and Safety Act are expected to come into force later this year. At the very least, they underscore the importance of proceeding cautiously and ideally, seeking legal advice, before disclosing personal information about any employee to other employees or third parties who do not, in the normal course, have access to such information.

Should you have any questions regarding the proposed amendments to the Occupational Health and Safety Act or privacy issues in the workplace, we would be pleased to assist you. For further information please contact:

George A. Leibbrandt
Labour and Employment Counsel
Tel: 905.276.0433
Email: gleibbrandt@kmblaw.com

The comments in this newsletter are of a general nature and are not designed to replace professional advice in specific situations. If you would like extra copies of this newsletter, or you know of anyone who would be interested in joining our mailing list, please contact Cheryl Woolcott at (905) 276-9111.