On Wednesday, Aug. 26, 2015, reporter Alison Parker and cameraman Adam Ward of Roanoke, Virginia-based television station WDJB-TV were shot and killed live on the air by their former coworker, Vester Flanagan.
In the wake of this horrific tragedy, many details have emerged about the aggression, heated confrontations and pattern of disruptive behaviour that led to Flanagan being dismissed from WDJB-TV about two years prior.
Flanagan’s troubled behaviour highlights the complex, conflicting legal obligations of an employer with respect to violence, or potential violence, in the workplace. While employers are legally required to ensure a safe workplace for all, they must also accommodate and protect the privacy of employees who may be coping with mental health and other personal issues.
The Occupational Health and Safety Act
In Ontario, the Occupational Health and Safety Act sets out the duties and responsibilities of workplace parties with respect to workplace violence.
Under the act, workplace violence is broadly defined to include not only the exercise of force against a worker, but also attempts, statements or behaviours that a worker could reasonably interpret as a threat to exercise physical force. Workplace violence can be perpetrated by co-workers (including supervisors), or by third parties with whom the worker may interact in the course of their job (for example, customers or patients).
Employers have a number of duties under the Act with respect to preventing workplace violence. Three primary duties are outlined here.
Workplace violence assessment
Employers have a duty under the act to conduct routine assessments of the risk of violence in a given workplace.
In conducting an assessment, the employer must take into account:
· The circumstances of the workplace, including its layout or location (for example, working in a vehicle or in an isolated area)
· The type of work carried out (for example, handling cash or working alone)
· Past violent incidents in the workplace.
The assessment must be repeated as often as is necessary to ensure the continued safety of workers, and the results must be reported to either the joint health and safety committee or directly to the workers, depending on the size of the workplace.
Workplace violence policy
Every employer in Ontario must prepare and review, at least annually, a policy about workplace violence. The policy, dated and signed by the highest level of management in the workplace, must include procedures for employees to report workplace violence and details of how the employer will investigate and deal with such complaints.
Importantly, each policy must be specific to the workplace and designed to control risks identified during the employer’s regular assessments of its risks. It is not enough to simply adopt a policy from elsewhere without tailoring it to the particular risks identified in a given workplace.
Employers have a related duty to provide adequate instruction and information to workers regarding the content of the workplace violence policy. All new hires should receive and review the policy as part of their orientation activities, and any amended policies should be widely distributed to all current employees. Supervisors may need additional training, particularly if they will be responsible for its correct implementation.
Disclosing history of violent behaviour
Employers must provide workers with information related to a risk of workplace violence from any person, be it a third-party (such as a customer or patient) or a co-worker, who has a history of violent behaviour.
The duty to inform is limited only to instances where a worker can be expected to encounter the violent person in the course of his work and the risk of workplace violence is likely to expose the worker to physical injury.
This duty may involve the disclosure of a person’s personal information to his colleagues, and thus is quite sensitive in nature. Employers must be extremely careful in determining when and what to reveal, as they cannot disclose more information than is reasonably necessary for the protection of a worker from physical injury. Privacy or human rights legislation may also play a role in determining what employers can and cannot disclose about a person’s history of violent behaviour. It may be best for an employer to seek legal advice as to how to proceed if it feels an individual’s personal information may need to be disclosed.
Tips for employers
It is most important to recognize that there is no one template for dealing with situations of actual or potential workplace violence. Each situation must be dealt with on an individual basis with an eye to the sometimes competing rights and responsibilities of all involved.
Nevertheless, some of the following tips may help employers when considering appropriate anti-workplace violence policies:
· Consistently review and update the workplace violence policy. Sync this review with another important yearly activity, such as the preparation of financial statements or T4s, so that the task is not forgotten.
· Conduct more frequent assessments, particularly in workplaces where violence may be more likely. Consider devising a mechanism for employee feedback as part of the assessment process.
· Destigmatize workplace violence through adequate training and discussion. Employees who feel that this issue is being carefully considered and taken seriously by management are more likely to feel comfortable bringing their concerns to their employer. Consider hosting a “lunch and learn” session to review and discuss the workplace violence policy together.
· As is the case with any workplace policy, consistency in application is key. Employees will not take seriously a policy that management ignores. Thoroughly investigate all complaints of workplace violence and refusals to work as a result of workplace violence and carefully document any incidents. Consistently discipline employees for failing to abide by the policy.
· Partner with a well-reputed confidential employee assistance program or provide referral services to therapists or other types of support for employees who are subject to workplace violence or who may be experiencing personal difficulties that could trigger violence in the workplace. Be warned, however, that therapists are bound by confidentiality and will not report the contents of the sessions to the employer.
· Review how corrective and disciplinary action, as well as terminations, are conducted by the employer with an eye to helping employees maintain dignity through these typically stressful or emotionally-charged events. In some cases, employers may consider utilizing police escorts or legal protective orders to reduce the threat of workplace violence.
· Review proper security measures in the workplace and make sure that employees are aware of all emergency procedures in the event of a violent incident.
While there is nothing to suggest that Flanagan’s behaviour was not appropriately handled by WDJB-TV, tragedies such as the deaths of Parker and Ward serve as an important reminder that workplace violence policies must constantly be re-examined to ensure that employers’ considerable preventative obligations are met and workers remain as safe as possible.
Kristen Pennington is an employment and human rights lawyer at Grosman, Grosman & Gale LLP in Toronto. She is passionate about making workplaces safer and free of discrimination. Follow her on Twitter @klpennington or at www.grosman.com.