All provincially-regulated employers must comply with Ontario’s Occupational Health and Safety Act (OHSA)
Overview of the OHSA
The OHSA sets out minimum health and safety standards to protect workers against hazards on the job. It applies to almost every worker, supervisor, employer and workplace in Ontario, including constructors, workplace owners, and suppliers of equipment or materials to workplaces that are covered by the OHSA. The OHSA does not apply to federally-regulated workplaces, i.e., telecommunication companies, banks and inter-provincial transportation companies, or to work performed in a private residence by the owner or occupant.
The OHSA lays out the roles, rights, and responsibilities of employers, supervisors, and workers to make Ontario’s workplaces safe and healthy. This is referred to as the workplace Internal Responsibility System, and is a key part of the OHSA. Workers who see a safety hazard or a breach of the OHSA in the workplace are obligated to report the situation to their employer or supervisor who, in turn, is required to address those situations.
Each workplace must have a joint health and safety committee, or a health and safety representative in smaller workplaces. The committee or representative has the power to identify workplace hazards, to get relevant information from the employer, to make recommendations to the employer, and to investigate serious injuries and work refusals.
The OHSA also lays out the procedures for addressing workplace hazards, and for enforcing the law in situations where compliance has not been met. The Ontario Ministry of Labour, Immigration, Training and Skills Development (MLITSD) is responsible for administering the OHSA.
What you need to know about workplace harassment
Under the OHSA, workplace harassment includes unwelcome words and/or actions that are known, or should be known, to be offensive, embarrassing, humiliating or demeaning to a worker, or to a group of workers, in a workplace. It also includes behaviour that intimidates, isolates and/or discriminates against the worker(s) that are being targeted. The definition of workplace harassment includes workplace sexual harassment, and what is often referred to as “psychological harassment” or “personal harassment.”
The comments and/or conduct typically happen more than once but could occur over a relatively short period of time, i.e., over the course of one day, or over a longer period of time, i.e., weeks, months or years. However, there may be situations where the conduct happens only once. For example, a single instance of an unwelcome sexual solicitation or advance from a supervisor or manager could constitute workplace sexual harassment. Other examples of workplace harassment include,
- making comments, jokes or suggestions that intimidate, ridicule, demean or offend a worker
- displaying or circulating information/pictures in print/electronic format that are offensive
- making phone calls or sending emails that are offensive
- bullying or aggressive behaviour
- inappropriate staring, or
- isolating or making fun of a worker because of their gender identity.
A worker could be harassed by a co-worker, supervisor, customer, client, patient, student, or stranger. It is critical for employers to recognize these kinds of behaviours and respond to them promptly. Left unchecked, the situation may escalate and result in workplace violence.
Reasonable actions by a manager or a supervisor for the purpose of managing and directing workers or the workplace are not considered to be workplace harassment. Reasonable management actions would be part of a manager’s or supervisor’s normal work function, and could include changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of health and safety measures, and disciplinary action.
If these actions are not exercised reasonably and fairly they may constitute workplace harassment. For example, if a worker was not scheduled for shifts solely because of his/her sexual orientation, this would likely be considered workplace harassment.
Differences of opinion, or minor disagreements between co-workers, also would not generally be considered workplace harassment.
The OHSA requires employers to prepare a workplace (violence and) harassment policy, to post it in the workplace, and to review it at least once a year. The MLITSD has a “Sample Workplace Harassment Policy” on its website that employers can quickly copy, complete, sign, and post. The workplace harassment policy should,
- show that you are committed to addressing workplace harassment
- take into consideration all of the potential sources of workplace harassment, i.e., customers, supervisors, strangers, etc.
- lay out how the workplace parties are responsible for supporting the policy and the program
- encourage workers to raise concerns about workplace harassment that they have either experienced personally or witnessed
- be signed and dated by the person at the highest level of management.
Employers are also required to develop and maintain a workplace (violence and) harassment program that implements its workplace harassment policy. The program must be created in cooperation with the joint health and safety committee or the health and safety representative, it must be in writing, and it also must be reviewed at least once a year. The MLITSD has a “Sample Workplace Harassment Program” on its website that employers can copy, complete, sign, and post in the workplace. The workplace harassment program must,
- include the measures and procedures for workers to report incidents of workplace harassment to the employer/supervisor, or to someone else if the employer/supervisor is the alleged harasser
- lay out how the employer will investigate and deal with these kinds of incidents/complaints
- explain how confidentiality will be maintained, and
- explain how the results of the investigation, and any corrective action, will be given in writing to both the worker who is alleging harassment, and the alleged harasser if he/she also works for the employer.
The workplace harassment policy and the workplace harassment program can be combined, as long as all of the requirements for each are met.
Employers are also required to provide information and training to workers about the content of the policy and the program, and ensure that incidents or complaints of workplace harassment are appropriately investigated.
How the OHSA is enforced
The OHSA and its regulations are enforced by the Ontario Ministry of Labour, Immigration, Training and Skills Development. If workplaces do not comply with the legislation, progressive enforcement begins with MLITSD Occupational Health and Safety Inspectors issuing orders, and may continue through to prosecution. Their role includes,
- inspecting provincially-regulated workplaces
- issuing orders where there has been a violation of the OHSA or its regulations
- investigating work refusals, critical injuries, fatalities, and health and safety complaints
- ordering the employer to arrange and pay for a third-party to investigate a complaint of workplace harassment and provide a written report
- investigating underlying occupational health and safety concerns that are connected to an unlawful reprisal complaint, and
- recommending prosecution for serious violations of the OHSA.
The penalties applied for breaching the OHSA or its regulations, for each conviction, are:
- a fine of up to $500,000 for an individual person and/or up to 12 months imprisonment, and/or
- a fine of up to $2,000,000 for a corporation.