Keep a close eye out for the signs

Nov. 12, 2005, remains the darkest day in the history of Windsor’s Hôtel-Dieu Grace Hospital. That’s when staff anesthesiologist Marc Daniel ambushed and stabbed his ex-girlfriend, nurse Lori Dupont, in a second-floor recovery room. Their colleagues worked desperately, but unsuccessfully, to save Dupont. Later, when the escaped Daniel was brought in with no vital signs after an overdose, they put aside personal feelings and almost saved him too.

In 2007, a coroner’s jury studying the incident made a recommendation to the Ontario Ministry of Labour: noting that literally dozens of Hôtel-Dieu employees had been aware of the danger Daniel presented, they requested “a review of the Occupational Health and Safety Act (OHSA) to examine the feasibility of including domestic violence (from someone in the workplace).” Domestic violence was added to the act in June, under provincial Bill 168. But the words in parentheses mysteriously disappeared along the way, which has left Ontario employers with awkward new responsibilities and its workers with diminished personal privacy.

The OHSA, which covers almost every worker in the province, now contains the following text: “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.” No definition of “domestic violence” is offered, and the rule, as written, comes into effect when there is a mere possibility that violence could spread to the office from outside.

Lawyers offering advice to employers have all but thrown up their hands, admitting that this language could create an obligation to make invasive inquiries. In a labour-law newsletter, Andy Balaura of Pallett Valo wrote, “It is unclear what an employer must do to properly discharge [his] duty” to be aware of threats to his staff from their own partners and families. Norm Keith of Gowling Lafleur Henderson concurred, saying that “it is difficult to understand how employers will be able to prevent domestic violence from spilling over into the workplace. At minimum, the domestic violence provisions of Bill 168 create potential liability for employers while having questionable benefits for the prevention of domestic violence.”

So what advice are the experts actually giving employers? Lawyers and human resources boffins agree that the precautions to take after an employee approaches a supervisor or manager are largely a matter of common sense. Businesses should be ready to offer information to workers living in fear of domestic violence, to adapt work arrangements, and to tighten security on the premises. The tricky issue is when to start asking awkward questions in the first place, on the grounds that one “ought reasonably to be aware” of a problem. Under current Ontario law, an employee’s home life can become a business’s liability issue, and in certain circumstances, when there is a clear threat from a person with a “history of violent behaviour,” it can even become mandatory to share details with other employees.

“A manager can’t ignore the rumour mill,” says Heenan Blaikie’s Cheryl Edwards, a former occupational health and safety prosecutor for Ontario. Edwards says most of her inquiries from clients, so far, have concerned Hôtel Dieu-type cases where the threat and the target of possible domestic violence are both on staff. When it comes to instances of potential “spillover” from outside, she says, “We don’t recommend that our clients start pre-emptively questioning all employees. But if something comes to your attention—perhaps a physical indication of an assault—then your obligation to protect is engaged.”

Joanne Royce of Royce & Associates, a human resources consultancy in Oakville, Ont., agrees. “If you’ve got a female employee coming into work with a black eye and a broken arm, it’s pretty clear that there ought to be an approach under the law,” she says. “The balance has been tilted away from privacy toward safety. Managers have to be ready to have difficult conversations that perhaps don’t come naturally to them.”

The Ontario Chamber of Commerce tried to have broad language in the domestic violence section and other parts of Bill 168 tightened, but its members now have to live in the brave new world—no matter their size. “For a large company with a human resources department, compliance with this provision might be relatively easy,” says chamber president Len Crispino. “But the burden of interpretation it imposes on a smaller company already facing a large universe of regulation is tremendous.”