“Health and Safety in Corrections: Finding the Gap”

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A health and safety toolkit for OPSEU/SEFPO members facing violence at work in corrections facilities and in probation and parole

   Ontario Public Service Employees Union 100 Lesmill Road, Toronto, Ontario M3B 3P8 www.OPSEU/SEFPO.org   

Contents

 Introduction: the problem of violence. 3

1. What is workplace violence?. 7
2. Workplace violence policies. 10
3. Workplace violence risk assessment. 13
4. The workplace violence program.. 27
5. The JHSC’s right to information. 42
6. Refusing unsafe work. 49
7. Contacting the Ministry of Labour. 63
8. Conclusion: Knowledge is power. 67

   

Introduction: the problem of violence

 Thousands of OPSEU/SEFPO members know what it is like to face violence in the workplace. But imagine a world where you and your colleagues supervise the daily routines of individuals who are being held against their will. Individuals who would rather be anywhere other than interacting with you. Individuals who often make their displeasure with their circumstances known to everyone around them and the resulting tension and pressure as a daily constant. Individuals who are not free to live their lives or do what they choose, but who live and chafe under institutional rules and routines set for them by jail management. Rules that are operationalized by workers who try to do the best they can with the little that they have. Perhaps no job possesses the unique challenges faced by our OPSEU/SEFPO men and women in corrections facilities and in their role as probation officers in the community. To say that correctional workplaces are violent places is an understatement. Workers in correctional and community services are called upon to provide care, custody, and control of the people we read about in the news, or who have come into contact with law enforcement in one way or another. In facilities, violence is a daily occurrence, both between offenders and as offenders towards staff. Violence occurs also in Probation and Parole. Probation officers manage offenders sentenced to serve their sentences in the community or monitor those reintegrating into society. The probation officer has a duty to inquire, ensure, and report that the individual is compliant with their probation conditions, or otherwise report on or return that person to custody. Probation officers face threats of harm or death, harassment, sexual harassment, and even violence on the job. But rampant violence in the correctional environment in Ontario does not diminish or remove an employer’s duty to take every precaution reasonable in the circumstances to protect workers – it amplifies it. Howard Sapers reports The need to improve the correctional system by preventing workplace violence has been reinforced by a number of reports written by Howard Sapers, Ontario’s Advisor on Correctional Reform. In January 2017, Sapers was appointed in the role and contracted to study and make recommendations to improve Ontario’s correctional system. Sapers released his first report in May 2017, Segregation in Ontario that contained 63 recommendations about the use of segregation in corrections. His second report, Corrections in Ontario: Directions for Reform (September 2017), looked more broadly at correctional reform and confirms the culture of correctional work as being difficult. According to his report, “decades of studies have shown that correctional work frequently entails a wide range of organizational, operational, and traumatic stressors, including difficult or demanding social interactions, low organizational support, harsh physical environments, and repeated direct and indirect exposures to violence, injury, and death events.” Sapers report on increasing violence And the stresses of such an environment are palpable. On May 2, 2018, the former Minister of Community Safety and Correctional Services, Marie-France Lalonde, wrote to express concern about violence within Ontario’s correctional institutions. Her letter led to the Minister assigning Sapers to conduct yet another independent review – this time of institutional violence and the management of inmate behaviour that contributes to this violence. His report confirmed that violence is skyrocketing. Assaults on staff per year increased from 354 in 2012 to 1,389 in 2017.According to the Sapers report Institutional Violence in Ontario (August, 2018), “Feedback revealed a severe disconnect between what frontline staff expect and what management provides in terms of communication, recognition, support, and trust. Correctional officers reported an exceptionally low sense of morale, increased stress, and an overall poor working environment. Evidence has associated negative institutional culture with a heightened risk of hostile interactions and institutional violence for both staff and inmates.” Negative culture, overcrowding, and increased violence occurs at the same time as staff are subject to the Code of Conduct and Professionalism, a policy about what is expected and what staff can and cannot do (e.g. conflict of interest, reporting criminal charges, behaviour on and off duty). In an overcrowded, harsh world with increasing violence, corrections staff try their best to perform their jobs even though there is a monumental gap between the resources they need and the expectations they must meet. They control violence the best they can while fearing that they will get fired because of how escalating situations are later viewed, because of wrongly placed elbows or body parts in scuffles, or armchair quarterbacking of how they should have acted. These fears cause a huge amount of stress. Preventing workplace violence is a timeless goal, but never as relevant as now, with the Sapers reports confirming the skyrocketing levels, and in the face of existing measures and procedures that can clearly use some improvement. 

Employer responsibilities: violence

 Under occupational health and safety law, employers and supervisors have the obligation to “take every precaution reasonable in the circumstances” to protect a worker. To prevent workplace violence, the employer must: 

• create workplace violence and harassment policies;
• post the policies in the workplace;
• assess the risk of violence in the workplace; and
• create a program that includes measures and procedures to control the risks of violence.

 By law, these procedures must set out: 

• how workers can summon immediate assistance;
• how workers shall report incidents of violence; and
• how employers shall investigate incidents of violence.

 In addition, employers must have a process (nick-named “flagging”) to inform workers about individuals the employer knows have a history of violence if workers are likely to interact with those individuals at work. Employers also must take every reasonable precaution to protect workers from domestic violence that enters the workplace. 

Employer responsibilities: harassment and sexual harassment

 The employer must prepare and post a harassment policy. The policy must include: 

• procedures for workers to report incidents of workplace harassment; and
• details on how the employer will investigate and deal with harassment complaints.

 The definition of workplace harassment also includes sexual harassment. Employers must: 

• develop procedures for workers to report harassment, including sexual harassment, to someone other than the employer if the employer is the alleged harasser; and,
• conduct appropriate investigations into complaints.

 Employers must inform complainants and respondents of the results of the investigation and of any corrective action taken. In addition, Ministry of Labour inspectors have the authority to order employers to conduct (at their own expense) a harassment investigation using a third party. Frontline workers and their unions continue to report that many employers are not doing enough to control workplace violence – or even complying with the minimum provisions in the OHSA. In many cases, they are failing to perform adequate risk assessments and failing to put procedures in place to prevent violence. Employers are also: 

• failing to perform risk re-assessments following a violent attack;
• failing to train staff about workplace violence prevention measures:
• failing to communicate about offenders with a history and risk of violence,
• inadequately reporting workplace violence events;
• failing to properly investigate workplace violence events;
• failing to report workplace violence events to joint health and safety committees (JHSCs); and,
• failing to take every precaution reasonable in the circumstances.

 

Giving you the tools to make your workplace safer

 Many OPSEU/SEFPO corrections members go straight from zero to work refusal, which is only one way to deal with a hazard that endangers worker health and safety. No doubt that there are times when only a work refusal will do, such as when a hazardous situation faces the worker, and, if action isn’t immediately taken, the worker will likely face harm. However, most situations do not compel the immediacy of a work refusal. If a gap exists in the measures and procedures and harm is not imminent or likely, then time is available to address the issue. Workers and locals should pursue or negotiate a remedy through using the “Internal Responsibility System,” by working through worker reporting and joint health and safety committee activity. Work refusals can be limiting. In a work refusal the inspector is authorized only to decide if the hazard is “likely to endanger” at the time of the work refusal. On the other hand, taking time to have local discussions, exchange rationales, and building solutions to improve precautions is often more successful in the long run than calling the question about whether something “is likely to endanger” in the given moment. Using a work refusal every time is like going “all-in” every hand in a poker game. Nobody goes all-in on every consecutive hand in poker. Where possible, it is best to get a hazard adequately controlled before it faces the worker in an emergency situation of imminent or reasonable prospect of harm. This is the meat of the JHSC’s work, using the requirements in the legislation. The OHSA provides a roadmap to identify the hazard, make recommendations for controls, and to document the process so that if any dispute arises, the gaps that exist and actions taken will be clear to even a third party. This toolkit is about how workers and union locals work with their joint health and safety committee members to make the workplace safer. It is important that all Corrections members use every clause of the OHSA to hold employers accountable to prevent and address workplace violence. The toolkit will go step-by-step through the Occupational Health and Safety Act requirements for workplace violence prevention so that we make sure that no stone is left unturned in our efforts. 

1. What is workplace violence?

In this section:

Definitions of workplace violence The OHSA prevails over other legislation

OHSA S. 1(1) defines workplace violence as:

 (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,(b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,(c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. It is important to look closely at the definition of workplace violence because this definition determines the steps an employer must take to prevent and control it. Workers must also understand the definition to be able to discuss the hazard with employers and – when necessary – Ministry of Labour inspectors. Before examining the main components of OHSA S. 1(1), it is helpful to consider the idea of the “intention” to exercise physical violence against a worker. The OHSA does not contain the word or speak to the idea of “intention.” Nonetheless, some employers and others have taken the position that if an offender or client has not formulated an intention to perform a violent act, then no violent act has occurred. This interpretation argues that the violent actions of a person under the influence of drugs or alcohol or suffering with delusions or psychosis would not be considered violent under the OHSA. Not true. While the idea of intention is important to decide if charges will be laid pursuant to the Criminal Code, it is not part of the OHSA. Under the workplace violence provisions of the OHSA, intention does not matter: what matters is the behaviour. Let’s break down the language of the definition: 

• the attempt or exercise of physical force by a person: This means anyone in the workplace, including offenders, family members, other workers, suppliers, contractors, other visitors, doctors, supervisors and managers.

 

• against a worker: The definition requires that the exercise or attempted exercise of force needs to be directed at a worker. However, this does not mean that other types of violence do not take place that need to be controlled. Workers may be called on to de-escalate offender-on-offender violence and other disputes in the workplace. The behaviour of stressed-out family members can be an issue as well. Because of these possibilities, employers should have clear policies on workers’ roles and responsibilities to intervene (or not) in these situations and they must ensure that workers are safe if they do intervene. If a worker is at risk of physical violence in those situations, then the event will meet the definition under the OHSA.

 

• in a workplace: 1(1) of the OHSA defines workplace as “…any land, premises, location or thing at, upon, in or near which a worker works.” Therefore, if the worker performs duties in an office or facility, in a car, or in the community, or in a client’s home, all are considered the workplace. The employer’s obligations to protect workers who are working in clients’ homes are more complex because employers do not automatically have the right to enter homes or control what goes on in private homes. However, the employer’s obligations for safety of the worker do not change. Employers are still obliged to identify potential risks and to take reasonable precautions to protect workers – no matter where their work takes them.

 

• that causes or could cause physical (or psychological) injury: Physical injury is not defined in the OHSA. However, the term means any physical injury and is not limited to serious injuries or injuries that prevent workers from performing work. A physical injury could be a bruise, a cut, or a muscle strain. These days we include psychological injury as well into the definition. Additionally, the clause refers to events that “could” cause injury. When looking at the situation, the possible result of the exertion of physical force should be assessed. If an offender lunges toward a worker but the worker moves to avoid being struck, then this event meets the definition. It is important to consider incidents that could have caused injury or “near misses.” OPSEU/SEFPO recommends that near misses (as incidents that could cause physical injury) should trigger reporting and possibly an investigation as well.

 

• an attempt to exercise physical force: This should be understood in the same way as the earlier advice about “near misses.” If an offender attempts to strike out or to harm a worker by physical force, it is a violent act which should trigger a report and possible investigation.

 

• a statement or behaviour: Written or verbal statements such as “I’m going to hurt you/break your leg/kill you/cut you/choke you” meet the definition of violence if the offender has the capacity to carry out the threat. Behaviours such as punching their fist into their hand, raising their fist or hand in the air with an angry expression, hitting their head on the wall, pacing, and agitated actions, should be considered as incidents of workplace violence and reported.

 

• reasonable for a worker to interpret as a threat to exercise physical force: Reasonable grounds have been defined as “…a set of facts or circumstances which would satisfy an ordinary cautious and prudent person that there is reason to believe and which goes beyond mere suspicion.” A person’s past behaviour and history of violence combined with their current situation and their actions and words may lead a worker to develop a reasonable belief that there is a real threat. For example, a worker may perceive a threat of violence if she knows, or has reason to believe, that an offender is not taking their medication as prescribed, or if the offender is agitated or has a history of violence.

 

OHSA Section 2 (2) states:

 (2) Despite anything in any general or special Act, the provisions of this Act and the regulations prevail.  Ontario employers must comply with many types of legislation. Sometimes, these laws may seem to contradict each other. One example of this is the Personal Health Information Protection Act (PHIPA), which employers frequently cite as a reason not to comply with OHSA S. 32.0.5(3), which requires employers to provide workers with information about persons with a history of violence. Employers may also say that PHIPA requirements prevent them from providing injury notices pursuant to S. 52. Employers may also point to requirements under legislation such as the Health Care Consent Act, the Long-Term Care Act, or the Mental Health Act as reasons for not complying with sections of the OHSA. However, OHSA S. 2(2) states that it prevails over other legislation. PHIPA states that it prevails unless the other legislation prevails. It’s an important difference. We understand this section of the OHSA to mean that employers need not fear that they are violating privacy legislation by reporting injuries or information about a person with a history of violence, or by doing anything else required in the OHSA. Worker safety must come first. Offender safety cannot exist without worker safety. If workers are afraid, under threat, or injured themselves, they cannot carry out their care, custody and control responsibilities. This is true whether the hazard is workplace violence or infectious diseases or other hazards. Safe and healthy workers will carry out their responsibilities and provide the service expected. 

Is this violence? Yes        No

 KNOW the definition of workplace violenceCHECK that your workplace violence policy uses the correct definition of workplace violence (that includes threats) 

2. Workplace violence policies

                                                                                                                      In this section:

OHSA requirements for workplace violence policies

What a workplace violence policy should say

 

OHSA S. 32.0.1 states:

 Policies, violence and harassment(1) An employer shall,(a) prepare a policy with respect to workplace violence;(b) prepare a policy with respect to workplace harassment; and(c) review the policies as often as is necessary, but at least annually.  Written form, posting(2) The policies shall be in written form and shall be posted at a conspicuous place in the workplace.  Exception(3) Subsection (2) does not apply if the number of workers regularly employed at the workplace is five or fewer, unless an inspector orders otherwise.   

What does the OHSA require employers to do?

 The employer must develop a written policy for workplace violence (and another for harassment). This policy must be posted in the workplace in a conspicuous place. A conspicuous place is one where the posted policy will be noticeable and clearly visible to all. Everyone attending the workplace should be able to see the policy and read it. Ensuring that the employer has a workplace violence policy posted may not seem important but it is the first step in seeing their plans and protections in writing and acts as a gateway to holding the employer accountable for their commitments to safety. 

What should the policy say?

 The policy should clearly state the employer’s duty to keep the workplace safe by preventing and controlling workplace violence. It should make clear that the employer has the ultimate responsibility to prevent incidents of workplace violence. Many policies also state that violence of any kind in the workplace will not be tolerated. The policy should state that it applies to everyone who deals with the facility or community with workers wherever they may be working. Everyone must comply with the policy. This includes employees, contract employees, medical staff, interns, offenders, tenants, volunteers, visitors, contractors, suppliers, consultants, vendors, and any others who may enter the workplace and have contact with workers. The policy should refer to the required workplace violence program which implements the policy. Although the policy does not have to provide a detailed description of the program it should, at a minimum, list the mandatory parts of the program, such as: 

• measures and procedures to protect workers from workplace violence;
• a means of summoning immediate assistance;
• a process for workers to report incidents or raise concerns; and
• how incidents will be investigated and dealt with.

 The policy should also reference the employer’s and supervisors’ duty to provide instruction and information necessary for workers to protect themselves. The policy must define the responsibilities and accountabilities of all workplace parties. The organization’s top administrators are ultimately responsible for developing and implementing the policy and procedures to control violence in the workplace. Employers’ and supervisors’ responsibilities to take “all precautions reasonable in the circumstances for the protection of a worker,” also apply to the hazard of workplace violence. Supervisors are required to follow the policy and to ensure that workers are complying with the workplace violence program. They should also investigate reports of workplace violence as well as those they may observe or hear about, even where not formally reported. The policy should also describe workers’ responsibility to comply with the policy and to report incidents or concerns about the threat of workplace violence.  Joint health and safety committee members should ensure that:The employer has developed a workplace violence policy and programThe policy and program (that lists measures and procedures for safety) is reviewed annually  

3. Workplace violence risk assessment

 In this section:

OHSA mandatory requirements for risk assessments

Who does the risk assessment?

Identifying the risks

Assessing the risks 

OHSA S. 32.0.3 states:

 Assessment of risks of violence (1) An employer shall assess the risks of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work.  Considerations(2) The assessment shall take into account,(a) circumstances that would be common to similar workplaces;(b) circumstances specific to the workplace; and(c) any other prescribed elements.  Results(3) An employer shall,(a) advise the committee or a health and safety representative, if any, of the results of the assessment, and provide a copy if the assessment is in writing; and(b) if there is no committee or health and safety representative, advise the workers of the results of the assessment and, if the assessment is in writing, provide copies on request or advise the workers how to obtain copies.  Reassessment(4) An employer shall reassess the risks of workplace violence as often as is necessary to ensure that the related policy under S. 32.0.1 (1) (a) and the related program under S. 32.0.2 (1) continue to protect workers from workplace violence.  Same(5) Subsection (3) also applies with respect to the results of the reassessment.   The OHSA requires employers to assess the risks of workplace violence to workers. This is a necessary first step before developing an effective program with measures and procedures to prevent and control workplace violence. A risk assessment (RA) for workplace violence follows the same steps as a risk assessment for any potential workplace hazard: identify, assess and control. However, when assessing workplace violence risks, the job is more complex: in addition to considering the physical environment, one must assess the risks from humans whose behaviours are changeable and dependent on many factors. It is no secret that violence is a hazard in correctional work. Many workers in correctional facilities and in the community have been severely injured. Many have never returned to work. Performing an adequate risk assessment is the first step in putting in place a program to control those risks. This section on risk assessment does not provide a step-by-step guide to RAs. Instead, it briefly discusses the requirements of the OHSA section quoted above, provides guidance and tips for performing an effective RA, and suggests helpful resources that your JHSC can recommend to your employer. The section contains a brief section on “controls” which should be identified following the risk assessment. The controls that are recommended to address the risks identified in the assessment should be included in the “measures and procedures” section of the workplace violence program, as required by the OHSA. 

Assessment and considerations

 The first two parts of S. 32.0.3 require the employer to assess the risks of violence that may arise from the nature of the workplace, the type of work or the conditions of work. The employer is also required to take into account circumstances that would be common to similar workplaces and circumstances specific to the workplace. The first requirement concerning nature, type and conditions of work means that the employer must consider in general what is going on in the workplace that could give rise to workplace violence. According to the MOL Guide, the nature of the workplace refers to the physical aspects of the workplace, whether it is a building, construction site, vehicle, or in the community. This may include workplace lighting, lines of sight, depth of counters, entrances, exits and objects that could be used to hurt workers. The type of work refers to the activities workers perform (such as supervising, searching, or enforcing), the sector of work (such as corrections) and people with whom workers interact (such offenders, and the public). The conditions of work refers to other aspects such as hours worked, proximity to others, the surrounding neighbourhood, and whether workers move from location to location, work alone or in isolation. Additionally, the employer must consider the circumstances common in similar workplaces and those specific to their workplace. This requirement is helpful in cases where, for example, an employer might resist putting in place effective procedures because there have been few reported incidents of violence against staff in recent years. If the workplace is a correctional facility, we know that in “similar workplaces” the incidence of workplace violence is very high. In this example, the JHSC can argue that the employer must consider the “circumstances that would be common to similar workplaces” when performing the risk assessment and consequently must develop measures and procedures to address the risks. This means that even if a workplace has no severe injuries due to workplace violence, the employer cannot ignore the fact that other facilities in the province have. OPSEU/SEFPO members can contact the Corrections Ministry Employment Relations Committee (MERC) or the Provincial Health and Safety Committee (POJHSC), or the OPSEU/SEFPO Health and Safety Unit who may have examples of injuries in other correctional workplaces. OPSEU/SEFPO members may also contact other OPSEU/SEFPO locals to learn more about health and safety conditions and workplace violence risk assessments and programs