Labour and Employment Law Blog

“I gotta get out of here before I slap someone,” said actor Jim Carrey discussing his decision to retire. He was, of course, referring to the now famous moment during the Oscars where Will Smith essentially attacked a co-worker, Chris Rock, who was doing his job.

Much fun and nuanced commentary has been provided about the Oscars slap, including discussions about how the Academy could have responded more swiftly and appropriately in the moment. The incident provides us an opportunity to remind our readers about employer duties regarding workplace violence. We recently chaired the Canadian Lawyer webinar on Occupational Health and Safety. Not surprisingly, many of the audience questions were about how to best assist employees mentally and emotionally as they transition back to the workplace. What most audience members were not aware of, however, were their legal obligations surrounding how workplace violence extends to domestic violence that has impacts for the workplace, such as where a worker’s partner attempts to harm them at work.

Employer duties with respect to workplace violence include:

• conducting a risk assessment if there is a risk of violence in the workplace, including incidents where domestic violence enters the workplace;
• if the assessment identifies a risk of workplace violence, developing a violence prevention program to eliminate or where not possible, reduce the potential of violent incidents at the workplace;
• informing workers who may be exposed to a risk of workplace violence about the nature and extent of the risk and providing them violence prevention training;
• instructing workers to report any incidents of workplace violence to the employer;
• advising workers that report injuries resulting from an incident of workplace violence to consult a physician of their choice; and
• investigating incidents of workplace violence to ensure any necessary corrective action is taken without delay.

Mr. Carey’s quip also raises some important issues regarding mental health checks for employees. Under the BC Human Rights Code, mental disability is included as a protected ground of discrimination. Generally, an employee would be expected to inform their employer about their mental disability and their need for an accommodation. However, the employer may have a “duty to inquire” even where an employee does not disclose their mental disability. This duty arises if the employer is aware or reasonably ought to be aware that an employee has a mental disability that may be creating a workplace issue. In such circumstances, the employer should inquire into the employee’s possible mental disability before making any decisions that could negatively impact their employment. If the employee’s mental disability is in fact connected to their work performance, the employer has the duty to accommodate the employee to the point of undue hardship.

Should you require any assistance on transitioning your employees back to the workplace in a safe, respectful way, or on developing a workplace violence policy, please do not hesitate to contact any member of our Labour, Employment & Human Rights Group.