Four challenges facing employers

The snow has subsided, the clouds have parted, and the sun is beaming – summer has arrived. And it’s about time too. I’m sure we’ve all had more than enough of the extended Canadian winters and unpredictable weather. We’ve all been eagerly awaiting the moment we could finally replace our winter coats and gloves with shorts and sunglasses. But with this pleasant change of weather also comes a number of changes within the workplace – challenges unique to the summer season.

Challenge #1: Vacation time 

As an employer, I’m sure you’ve been preparing yourself for this – managing vacation time. How do you manage the high demand of these summer weeks without being accused of unfair play and favouritism? According to HRM Online, here are a few steps you can take this summer to help reduce the annual headache (source):

With such nice weather in our midst, there’s a good chance that all the distractions of the summer will curb employee productivity. Whether its day dreaming about being on the beach or the excitement of upcoming vacation plans, there’s no denying many people aren’t too thrilled about being in the office.

Some employers have suggested that the secret to beating the heat is giving back to your employees. Here are a number of techniques you can use in your own office to help boost employee morale and, as a result, productivity during these summer months (source):

1. 1. Alternate Work Arrangements: Have you ever considered half-day Fridays? Compressed workweeks? Flexible hours? Alternate work arrangements are a great way to keep your employees motivated during the summer. Check out our blog on unexpected absences for some other helpful tips.
2. 2. Annual Company Picnic: Something as simple as a company picnic is a great way to bring all workers together and have a good time enjoying the weather. Use this as an opportunity to express how thankful you are for hardworking employees – it will go a long way.
3. 3. Start “Casual Fridays”: As it gets hotter and hotter during the summer, shorts and a t-shirt are a nice break from the usual office attire. Casual Fridays can help boost everyone’s spirits.
4. 4. Treat Office to Lunch: Believe it or not, food is a powerful motivator and may keep employees satisfied. When is the last time you offered to buy lunch for all? An easy way to please.
5. 5. Hold Meetings Outside: Do you have a weekly or monthly team meeting? Why not take things outside? For employees cooped up in the office, this is a great way to get some fresh air and rewind.

Challenge #3: Dress code

While this may not necessarily be a challenge for most employers, the topic has recently surfaced in the news after the Ontario Premier’s office implemented a mandatory summer dress code for her office. Earlier this month, her office released a list of unacceptable summer fashion in a building-wide email from the director of Human Resources.

So what made the banned list? Tank tops, muscle shirts, halter tops, miniskirts or dresses, “revealing” shorts, spaghetti straps, and bare shoulders to name a few. While dress codes are generally up to an individual office, human rights complaints have been made in the past when the requirements are considered sexist or specifically aimed at a women or another protected group.

Challenge #4: Temperature woes

Heat stroke and heat exhaustion pose a very real threat to employees who work outside during the summer. In previous years, people have actually died at work of heat stroke in occupations ranging from agriculture workers to football players. If you have employees working outside this summer, make sure you are prepared to handle this type of situation. Workplaces where heat stress can occur should monitor conditions and ensure that workers get specified rest periods dependent on the measured heat levels. The Canadian Centre for Occupational Health and Safety offers up some tips to help you recognize and know the warning signs: http://www.ccohs.ca/headlines/text185.html 

On the flip side, for those of you working in office environments, be sure not to crank the AC up too much this summer. Studies have shown that workers are far more productive in comfortable or warmer temperatures than when they are cold. In the study it was found that, when the temperature was 20°C workers made 44% more errors and were half as productive than when the thermostat hit 25°C. So next time you see an employee cracking out their space heater or big winter sweater… turn it down! 

As much as we are all enjoying the beginning of the summer months, it’s important to take all of these challenges into consideration as employers. Not only will employees be happier and more motivated, but it will also help you have a more enjoyable summer yourself. Time to hit the beach!

Drug and alcohol testing in the workplace, particularly randomized testing, has always been a grey area for employers. When is such testing permissible? When is it deemed reasonable in light of safety concerns? The Supreme Court of Canada has answered some of these questions after their long-awaited decision regarding randomized drug and alcohol testing in the case of Irving Pulp and Paper.

A decision seven years in the making 

Back in 2006, Irving Pulp and Paper adopted a new policy on alcohol and drug use at its mill in New Brunswick. Because of the highly dangerous nature of the workplace, Irving decided to implement a random alcohol testing program as part of this new policy. This program required 10 percent of employees holding “safety-sensitive” positions to be randomly selected for unannounced breathalyser testing each year. In the event that the test came back positive, the employee could be subject to significant disciplinary consequences, including dismissal. The policy also stated that a failure to submit to testing was grounds for dismissal.

Having a testing program in place in such a dangerous workplace environment seems reasonable, doesn’t it? Well it must also be taken into account that, in the 15 years prior to the introduction of this new policy, there were only 8 documented incidents of alcohol consumption or impairment at the mill. In addition to this, there were no accidents, injuries, or near misses connected to alcohol (source).

The case begins

The same year that the policy was implemented, a policy grievance was filed by the union challenging the “without-cause” aspect of the alcohol testing component and alleging that it was unreasonable. The grievance proceeded to arbitration. The arbitration board found that there was not sufficient evidence of an existing problem with alcohol use in the workplace, despite the dangerous nature of the work environment. In this case, the employee’s right to privacy superseded the benefits of the program. The board found the policy to be unreasonable and unjustifiable.

The matter then went to the New Brunswick Court of Appeal who rejected the union’s argument alleging that random and mandatory testing in a workplace is justified once the employer establishes that its workplace operations are inherently dangerous. In the eyes of this court, the policy was found to be reasonable.

Supreme Court's final decision

After being bounced around without a final decision, the case was finally brought before the Supreme Court of Canada. In the end, the majority of Supreme Court judges agreed with the labour board in a 6-3 majority, which found that the mill did not have a serious safety problem associated with alcohol, and therefore did not have reasonable grounds for testing. However, with that said, the Supreme Court did say that there are cases in which employers in safety-sensitive work environments may be justified in implementing random alcohol testing. Specifically in cases when there is a safety risk in the workplace due to alcohol or a general problem with substance abuse exists.

The three judges that did not agree with the final decision noted that an employer should not be required to wait for a serious incident of loss to take proactive steps to mitigate risk. One of the judges said that “an employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action. To require such a causal connection is not only unreasonable, it is patently absurd.”

We are interested in hearing your thoughts and comments about this ruling by the Supreme Court. You can participate in the comment section below.

Drug and alcohol testing in the workplace

So, let’s get down to business. What does this decision mean for you as an employer? What do you need to know about workplace alcohol and drug testing programs?

Despite the decision made by the Supreme Court, there still remains a level of uncertainty when it comes to company drug and alcohol testing programs. Determining how “reasonable” it is in each unique case can be a bit subjective. The overall purpose of random testing, or just testing in general, is to reduce to the risk of incidents and injuries caused by alcohol and drug use. If implementing a drug or alcohol test isn’t an option, there are alternatives according to H&S Ontario that can help to reduce concerns about worker impairment and minimize potential safety risks:

1. Employee Assistance Programs
2. Drug Education and Health Promotion Programs
3. Off-Site Counselling and Referral Services
4. Peer or Supervisor Monitoring

Need help? Clear Path’s Health and Safety team provides training, policy development, and the expertise you need to establish a culture of safety in your workplace. Contact us today: www.clearpathemployer.com/safety

June 15th marks the 3rd anniversary of Ontario's Bill 168, which modified the Occupational Health & Safety Act  to expand the definition of workplace violence and harassment and added specific and explicit requirements for employers.  Here is a list of interesting stats related to workplace violence:

• Nearly 1 in 5 violent incidents (including physical assault, sexual assault and robbery) occur in the workplace.  Source: Glenn French of the Canadian Initiative on Workplace Violence (2007)
• Employees who work with the public face a higher risk of workplace violence, particularly those working in the health care industry and justice system. Other high risk industries include: bars and restaurants, pharmacies, banking or financial services, government workers, teachers, and those whose company is involved in a period of transition (such as employee lay-offs, closings, or other significant changes). Source: Ministry of Labour.
• Men and women were equally likely to have experienced workplace violence, but men were more likely to be injured. Specifically, 27 per cent of incidents involving male victims resulted in injuries, compared with 17 per cent of those involving female victims. Source: www.workplaceviolence.ca
• Violent workplace incidents were twice as likely to be reported to police (37%) compared to those that occurred outside the workplace (17%) Source: www.workplaceviolence.ca​
• A U.S. study showed that government employees make up only 16% of the workforce but were the victim of up to 41% of non-fatal workplace violence incidents. Source: "Workplace Violence Against Government Employees, 1994 - 2011) http://www.bjs.gov/content/pub/pdf/wvage9411.pdf.

Do you have any questions about managing your company's risk of Workplace Violence? The experts at Clear Path would be pleased to discuss strategies you could deploy. You may also be interested in our easy-to-use Do-It-Yourself Package for Bill 168 which can help ensure your company is compliant with the requirements of Ontario's Bill 168.

If you have any questions, please don't hesitate to contact Anna Aceto-Guerin at (519) 624-0800 or anna@clearpathemployer.com.

On June 15, 2010 the Ontario government's changes to the Occupational Health and Safety Act, known as Bill 168, came into effect. These changes included stringent and explicit requirements for employers to prevent workplace violence and harassment. 

Perhaps due to the relatively speedy passage of the legislation and the lack of government resources to assist during the compliance process, as many as 80% of Ontario businesses still have not met the requirements of Bill 168.
 
Worse yet, many are under the mistaken impression that they are compliant only to find out otherwise when visited by a MOL auditor.

Here is a list of the specific requirements under Bill 168:

• Each business must perform a risk assessment to determine the risk of workplace violence at least once per year and whenever there is a change in the company's situation (i.e. moving, adding a new location, change in how it services customers).  This risk assessment should include a physical hazards assessment of all work spaces, a review of any historical incidents of workplace violence or harassment for your company, and research into incidents at similar businesses. Results of each assessment must be communicated to your Health & Safety Committee and/or employees.

• As a result of your risk assessment, your company must establish or modify your company's processes and procedures to reduce the risk of workplace violence and harassment. This may include reducing risk factors such as having employees work alone, during late evening or early morning hours, having your workplace, working in isolation, working with the general public, handling money, valuables, alcohol, or prescription drugs, or working in situations that can be confrontational.

• You must develop or update your company's written policies on workplace violence & harassment. You must include mention of the expanded definitions of workplace violence (now includes the threat of violence) and workplace harassment (which now includes personal harassment that is not necessarily connected to protected grounds under the Charter).

• Create and communicate procedures for your employees, particularly related to: a) how to report an incident and b) how to summon emergency assistance in the event of an incident of workplace violence.
• Train your employees and managers on the details of Bill 168 (including those employees hired since the last time you held a training), including new requirements related to:

Clear Path's HR consultants love to help employers resolve their HR challenges and answer important questions.

Here are answers to some of the most commonly asked questions regarding Ontario's Bill 168, which modified the Occupational Health and Safety Act to include explicit requirements for employers to prevent workplace violence and harassment.

What is the Occupational Health & Safety Act (OHSA)?

• Provincial legislation that imposes a general duty on employers to protect workers against health and safety hazards on the job 
  
• Establishes procedures for dealing with hazards 
• Enforcement is carried out by government inspectors 
  
• In some serious cases, charges may be laid by police or crown attorneys under Section 217.1 of the Canada Criminal Code (known as Bill C-45)

When did Bill 168 come into effect?

• Bill 168 came into effect on June 15, 2010
• However, several sources estimate that approximately 80% of businesses are not yet compliant and open to penalties from the MOL

What are the elements contained within Bill 168?

• Expands definitions of workplace “violence” and “harassment” 
  
• Places explicit duty on employers to  protect workers
• Adds new obligation to prevent domestic violence in the workplace 
  
• Controversial requirement to disclose an individual’s history of violent behaviour to fellow employees 
  
• Conflicts with privacy legislation
• New rules for work refusals 
• List of new required actions for employers

What two cases influenced Bill 168?

• O.C. Transpo (Ottawa) in 1999 where bus driver Pierre Lebrun retaliated about workplace bullying by shooting 4 co-workers and himself
  
• Hôtel-Dieu Grace Hospital (Windsor) in 2005 where nurse Lori Dupont was murdered by a doctor with whom she had a previous romantic relationship

What factors increase likelihood of workplace violence?

• Working with the public
• Working alone, in isolated areas, or during early/late hours 
  
• Handling money, valuables or prescription drugs 
  
• Alcohol being served 
  
• Working during times with increased levels of stress (tax season, Christmas)
• Being involved in interactions that can be confrontational (perform. appraisals) or during periods of intense organizational change (e.g. strikes, downsizing)
• Working in the health care or criminal justice systems

Previously, claims of harassment had to be linked to "protected grounds." What are "protected grounds" under the Human Rights Code?

• Age •  Race •  Religion •  Religious creed •  Political opinion •  Colour or ethnic origin •  National or social origin •  Sex •  Sexual orientation •  Marital status •  Family status  •  Physical disability •  Mental disability

What  actions must an employer take when presented with suspected domestic violence of an employee?

• Investigate and assess the level of risk

• Potentially prevent the accused party from entering the premises or attending a work-sanctioned event (i.e. holiday party) 
  
• Notify fellow employees who are likely to encounter the accused of the risk 
  
• Disclosure may be limited to security/reception or to individuals who work directly with the affected spouse 
  
• It may also be necessary to notify the entire workforce. 
  
• Limit disclosure of personal information to what is reasonably necessary to protect workers from physical injury. 

Prior to Bill 168, what was the law related to work refusals (Section 43)?

• Section 43 stated that an employee can refuse work if he/she believes that the situation is unsafe to either himself/herself or his/her co-workers.
• The employee must report to their supervisor that they are refusing to work and state why they believe the situation is unsafe. 
  
• Employee, supervisor, and a Joint Health & Safety Committee (JHSC) member will investigate. 
  
• Worker is to remain in a safe place near their work station

What are the new work refusals under Bill 168?

• Under Bill 168, employees may refuse unsafe work where they have reason to believe that “workplace violence is likely to endanger himself or herself…”
• Bill 168 also removes the requirement for that worker to remain near the workstation until the resulting investigation is complete. 
  

• Instead, the worker is required to remain “in a safe place that is as near as reasonably possible to his or her work station…”   
  
• Note: The right to refuse work does not apply in instances related to workplace harassment

June 15th marks the third anniversary of Ontario's Bill 168, which modified the Occupational Health and Safety Act to include more stringent and explicit requirements for employers to prevent workplace violence and harassment. 

Bill 168 remains controversial because it includes the need to prevent domestic violence in the workplace and the obligation to disclose a co-worker's history of violence to fellow employees.

It is estimated that up to 80% of Ontario small businesses are not yet compliant with the legislation (or may not understand that they have not completed all the requirements).

Here are some updates on what's happening in Ontario related to Bill 168:

Labour board finds Ontario business liable under Bill 168

In January, the Ontario Labour Relations Board (OLRB) found that Pro-Cut Concrete Cutting, a commercial and industrial concrete supplier based in Thornhill), was liable for a supervisor’s assault and threats against two workers as a violation of the Bill 168 provisions within the Occupational Health and Safety Act. 

Interestingly, it declined to award the union's request for substantial monetary damages (they had asked for $50,000 in punitive damages and $100,000 to each worker for mental distress). The board did award lost pay to the workers.

The company was providing services at a construction job site on Sept. 24, 2012 when a supervisor (who is also a principal of the company) physically assaulted a labourer. On Nov. 5, 2012, the same supervisor threatened another worker with physical violence and death. The workers' union filed a grievance.

A summary of the results:

• The board decided there was sufficient evidence to conclude the assault on one labourer and threats to the other took place.
• It also found that Pro-Cut had failed to develop and maintain a program to implement workplace policies with respect to workplace harassment and violence, and had not provided any information or instruction for its workers on any such policy (violations of Bill 168).
• OLRB ordered Pro-Cut to cease and desist from violating the act and any related collective agreement provisions and pay compensation for any lost pay to the two labourers. 
• However it declined to grant the union’s requests for additional monetary damages as well as an order prohibit the supervisor from entering the Pro-Cut jobs sites.
• It also declined the request that a formal apology be given from the supervisor to the workers, stating it did not have enough information.
• Another hearing is scheduled to assess damages for the violation of the collective agreement.

MOL blitz targets workplace violence in healthcare industry

According to the MOL press release, more than 550,000 Ontarians work at hospitals, long-term care homes, retirement homes and other health care workplaces. This sector is particularly vulnerable to incidents of violence as health care workers regularly deal with patients with mental illnesses or who are under the influence of drugs or alcohol.

Between February and March 2013, MOL inspectors visited hospitals, long-term care facilities, and residential group homes to check that employers are:

• Preparing policies and programs to protect workers from workplace violence and harassment
• Providing information to workers on the policies and programs
• Assessing violence risks in the workplace
• Establishing measures and procedures to control violence
• Taking reasonable precautions to protect workers from domestic violence in the workplace

Yasir Naqvi, Ontario's Minister of Labour, released the following statement regarding the Winter Blitz:

The results of the MOL Blitz are not yet available, but will be shared at a later date.