In June, a Burlington dental office (Dr. Vick Handa’s Upper Middle Dental) was temporarily shut down and 9,000 patients notified that instruments had not been properly cleaned before being used. According to this CBC article, patients were warned to go to a physician to test for hepatitis B and C and HIV. The RCDSO suspended Dr. Handa’s license from June 12 to June 14. On June 14, that practice was inspected and confirmed to have met infection control standards.
Now, as I write this, a Guelph dental practice is about to get sued in a class action by patients. By way of background, Guelph Dental Associates (which also operate under the name “Growing Smiles”) was shut down by public health inspectors and its 3,600 patients were urged to get tested for hepatitis B and C and HIV as a result of improper sterilization. This all started after the parents of a young patient complained about developing a bacterial infection after a trip to the dentist in June, which triggered an inspection and the shutdown. Weeks later, with the practice still not open, Gary Will of Will Davidson LLP says he signed up a few patients in a class action lawsuit (which could theoretically include all 3,600 patients) and is seeking millions of dollars in damages.
All of a sudden, infection control became the two key words of the summer for dentists. In August, for example, both Henry Schein and K-Dental are educating dentists about their obligations when it comes to infection control. And if you go on the RCDSO’s website, infection control is right there, at the top, with a link to a page that talks about:
So with that said, let’s take a look at some of the legal implications of infection control, shall we?
In the next blog, I’ll get into a dentist’s obligation under the Occupational Health and Safety Act.
In 2011 employers only had to write a harassment policy and inform their workers about the policy. No other duties were imposed on employers by the Ontario Occupational Health and Safety Act (Act).
So, when an employee lodged a complaint against its employer for failing to investigate a complaint of harassment, the Ontario Labour Relations Board (OLRB) denied him on the basis that the Act does not impose a positive duty on the employer to investigate complaints of harassment [Investa Financial Services Inc and Industrial Alliance Insurance and Financial Services Inc 2011 CanLII 30897 (ON LRB)].
A few years later, the OLRB again had a similar case before them and affirmed their earlier decision saying that “…the Act places no obligation on employers to provide a harassment free workplace or to provide any specific type of investigation or outcome of a harassment complaint“.
But, since September 8, 2016, the rules of the game have changed. The Act was amended and now employers’ responsibilities are significantly bolstered when it comes to workplace harassment. Employers can no longer simply create a harassment policy and sit on their laurels. They now have a positive duty to address harassment in the workplace on an ongoing basis.
And if you think that implementing the changes required is too much work, or you just don’t have time for it… think again! In February 2017 a company was fined $70,000 for failing to comply with Ministry of Labour orders requiring them to develop workplace harassment and violence prevention programs – $10,000 per count of non-compliance. You can read about it here.
Here’s what Ontario dentist employers need to know about the amendments and their new obligations:
The Act now states that “workplace harassment” includes workplace sexual harassment and it defines “workplace sexual harassment” as:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome [Section 1(1)]
It is also important to note that the Act also clarifies that “a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment” [Section 1(4)].
These expanded definitions must be included in your office harassment policy.
Under the new amendments employers must now consult with their Health and Safety Representative (HSR) or Joint Health and Safety Committee (JHSC) when developing and maintaining a workplace harassment program [Section 32.0.6(1)].
Practically speaking, this means that you will have to provide the HSR or JHSC with any information relevant to the harassment program and allow them to comment on the program either verbally or in writing. Such comments must be considered in good faith and suggestions implemented, where appropriate.
Because the HSR and JHSC may not be qualified to make comment regarding issues of workplace harassment, it may be wise to provide training that is relevant to ensure that the HSR or JHSC can give meaningful feedback about the program [Section 32.0.8].
Additionally, once the program is in place, employers now have an obligation to review the program at least annually to ensure it is working properly [Section 32.0.1(1)(c)]. More frequent re-visits to the program may be warranted where an investigation reveals gaps in the program.
Employers now have an active (as opposed to reactive) duty to protect workers from workplace harassment by conducting investigations into “incidents” as well as “complaints” that are appropriate in the circumstances [Section 32.0.7(1)(a)] This means that if an “incident” of harassment comes to the knowledge of the dentist, that incident must be investigated regardless of whether or not there is a formal complaint made about it. You won’t be allowed to bury your head in the sand and say “no one complained, so I didn’t investigate”. As for what is “appropriate in the circumstances” – timeliness, fairness and thoroughness are all likely to be taken into consideration.
The harassment program now has to include “measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser” [Section 32.0.6(2)(b)].
Because of the imposition of these new positive duties on the employer, the Ministry of Labour investigators were also given additional powers. An investigator can now order an employer to carry out an investigation by an impartial person with specific knowledge, experience or qualifications and obtain a written report from the investigator [Section 55.3]. Such investigation will be at the expense of the employer. An “impartial person” may be internal or external, depending on the circumstances. Such an order may be made in circumstances where there is a complaint to the Ministry of Labour or where a Ministry blitz uncovers workplace problems that have not been addressed or have been inadequately addressed.
Information obtained in the course of a harassment investigation, including identifying information about individuals involved, must not be disclosed unless necessary for the purpose of investigating or taking corrective action or as required by law [Section 32.0.6(2)(d)].
The complainant and alleged harasser (if an employee) must be informed of the results of an investigation and any corrective action that has been taken as a result of the investigation [Section 32.0.7(1)(b)]. This doesn’t mean that the entire report be disclosed to the parties (especially in light of the obligation to keep information private). But it may mean that you provide a summary of the report with as much information as necessary to discharge the obligation of informing the parties about the results and corrective action.
Reports and relevant materials must be kept by the employer for at least 1 year.
Now that you know about the changes, you not only have to advise your employees about the amendments in the law by re-writing your harassment policy and program, you also have to implement it and re-visit it every year!
For further reading about employers’ obligations under the Act, you can read the Ministry of Labour’s Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act which is very easy to understand and covers all of the new amendments as well as the preexisting laws.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about the OHSA, need advice about your obligations as an employer, or need help coming up with and implementing the new harassment policy, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
In this post, I will go over 10 common errors I have seen in harassment and human rights investigations. Read more
Here are some of the things that you, as an employer, must have posted in and around the dental office where your employees can see and refer to them on a regular basis:
The Occupational Health and Safety Act R. S. O. 1990 Chapter O.1 (the “OHSA“) is a piece of legislation which sets out the rights and duties of all parties in the workplace and provides the legal framework to making Ontario’s workplaces safe and healthy.
Section 25(2)(i) of the OHSA mandates that all employers post a copy of the OHSA in English and any other majority language of the workplace.
Where can I find this?
The entire contents of the OHSA can be found and printed by clicking here.
Section 2(3) of the Employment Standards Act, 2000, S. O. 2000, C. 41 (the “ESA“) states that all employers must “post and keep posted in at least one conspicuous place in every workplace of the employer where it is likely to come to the attention of employees in that workplace a copy of the most recent poster published by the Minister under this section”.
The poster in question is entitled What You Should Know About The Ontario Employment Standards Act, 2000 and gives employees a snapshot of their most basic rights as employees including hours of work, rest periods, overtime pay vacation, etc.
Where can I find this?
The What You Should Know About The Ontario Employment Standards Act, 2000 poster can be found in pdf format here.
The OHSA allows for other posters to be mandatory in Ontario workplaces. One of those posters is called Health & Safety at Work: Prevention Starts Here. It sets out workers’ rights and obligations as well as employers’ and supervisors’ rights and obligations when it comes to workplace health and safety.
Where can I find this?
A copy of Health & Safety at Work: Prevention Starts Here can be downloaded in pdf format here.
The Workplace Safety and Insurance Act, 1997 S.O. 1997, Chapter 16, Schedule A (the “WSIA“) is intended to promote health and safety at work, promote the safe and timely return of injured workers back to their jobs and to provide for compensation to injured workers unable to perform their duties.
Under R.R.O. 1990, Regulation 1101, which is a regulation respecting first aid, the Workplace Safety and Insurance Board (the “WSIB“) has mandated that every employer “shall at all times keep posted in other conspicuous places in the place of employment the Board’s poster known as Form 82 respecting the necessity of reporting all accidents and receiving first aid treatment”.
Where can I find this?
Form 82, otherwise known as the “In Case of Injury” poster, can be downloaded here.
Sections 25(2)(j) and (k) of the OHSA mandate that every employer post at a conspicuous location in the workplace a written copy of the occupational health and safety policy which is to be reviewed annually. The employer must also develop and maintain a program to implement the office’s health and safety policy.
Where can I find this?
Normally, the health and safety policy will be located in your office’s employee manual. If you do not yet have a health and safety policy developed, you can find guidance, including a sample policy, by clicking here.
Part III.01 of the OHSA requires that, unless otherwise ordered, workplaces with more than 5 employees must have workplace violence and harassment policies in place and that such policies must be posted in a conspicuous place. The contents of such policies must include things like: measures and procedures to control the risks of physical injury, violence or harassment; measures and procedures for workers to report incidents; how the employer will investigate and deal with complaints; etc.
Where can I find this?
An example of a workplace violence policy is given by the Ministry of Labour and can be found here. An example of a workplace harassment policy is also given by the Ministry of Labour and can be found here. For general information on workplace violence and harassment you can click here.
For further guidance and information on employee postings or anything else contained in this blog, you can contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or email@example.com.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or firstname.lastname@example.org.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or email@example.com.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or firstname.lastname@example.org.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or email@example.com.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.