Employment Law and COVID-19 Considerations Relating to Domestic Violence in the Workplace
NOTE: The employment-related portion of this webinar/paper mainly focuses on Ontario legislation. However, it is an employer’s general duty across all jurisdictions to ensure all employees have a safe and healthy workplace.
Occupational Health and Safety Act
Employers have a general duty to “take every precaution reasonable in the circumstances for the protection of a worker” (s. 25(2)(h)).
Under s. 32.0.1 of the Occupational Health and Safety Act (“OHSA”), an employer with more than five employees must prepare a workplace harassment and violence policy and review the policies at least once per year. The written policies must be posted in a “conspicuous place” in the workplace.
Workplace harassment means:
- engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; or
· workplace sexual harassment.
Workplace sexual harassmentmeans:
· 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 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.
Workplace violence means:
· the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;
· an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; or
· 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.
- any land, premises, location or thing at, upon, in or near which a worker works.
Domestic violence is not specifically defined in the OHSA. According to the Canadian Centre for Occupational Health and Safety, it is “a pattern of behaviour used by one person to gain power and control over another with whom they have or have had an intimate relationship” and may include:
- using property, pets, or children to threaten and intimidate;
- economic abuse such as withholding or stealing money, stopping a partner from reporting to work, or from getting or keeping a job; or
- sexual, spiritual, or emotional abuse.
With regard to workplace violence, a program must (s. 32.0.2(2)):
- include measures and procedures to control the risks identified in the assessment required under subsection 32.0.3 (1) as likely to expose a worker to physical injury;
- include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;
- include measures and procedures for workers to report incidents of workplace violence to the employer or supervisor; and
- set out how the employer will investigate and deal with incidents or complaints of
Employers must assess the risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work. (s. 32.0.3(1)).
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 (s. 32.0.4). Workers should be told that they can, and should, report their concerns to their employer if they fear domestic violence may enter the workplace.
An employer may become aware of domestic violence when an incident takes place at the workplace or when a concern is reported by a targeted worker, co-workers, or someone else. Other indicators could include threatening emails and phone calls received at work or unwelcome visits at the workplace, such as by an abusive partner.
Even if a worker does not want any steps taken, the employer may still be required to take some action to protect the targeted worker and other workers, depending on the circumstances. The employer should work closely with the targeted worker to develop reasonable precautions to address the situation while attempting to respect the worker’s privacy and sensitivity of the issue.
Employers must be prepared to investigate and deal with domestic violence concerns on a case- by-case basis. In addition to evaluating a worker’s specific circumstances, employers should determine which measures could be used to support the development of reasonable precautions for the worker. This could involve creating an individual safety plan for the worker while he or she is in the workplace. The safety plan should be developed in consultation with the targeted worker and their advisors/supporters. In developing the plan, the employer and worker may be able to work with the police, courts, or other organizations who may already be involved. Safety plans may include:
- asking for a recent photo or description of the abuser so that security/reception can be alerted and are aware of who to look out for;
- relocating the worker, if necessary, so that he/she cannot be seen through windows or from the outside, and so he/she does not work close to any public entrances;
- not including the worker’s contact information in publicly available company directories or websites;
- providing a well-lit parking spot near the building or escorting the individual to their car or to public transit, as appropriate;
- offering flexible work scheduling if it assists the worker;
- not scheduling both employees to work at the same time or location if the victim and abuser work at the same workplace; and/or
- using appropriate disciplinary procedures to hold the abuser accountable for unacceptable behaviour in the workplace if the abuser works at the same workplace and engages in misconduct.
With regard to workplace harassment, a program must (s. 32.0.6(2)):
- include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;
- 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;
- set out how incidents or complaints of workplace harassment will be investigated and dealt with;
- set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law; and
- set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.
Employers must ensure that (s. 32.0.7.(1)):
- an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
- the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; and
- the program developed under section 32.0.6 is reviewed as often as necessary, but at least annually.
An investigation must be completed in a timely manner and generally within 90 days or less unless there are extenuating circumstances (i.e. illness, complex investigation) warranting a longer investigation.
Workplace Violence and COVID-19 Considerations
Context and Relevant Statistics
In December 2013, the Canadian Labour Congress and the University of Western Ontario conducted the first ever survey on domestic violence in Canadian workplaces entitled “Can Work Be Safe When Home Isn’t? Initial Findings of a Pan-Canadian Survey on Domestic Violence and the Workplace.” A total of 8,429 people completed the online survey.
- 33.6% reported being the victims of domestic violence.
- 35.4% reported having at least one co-worker who they believe is experiencing or has previously experienced domestic violence.
- Of those who reported a domestic violence experience, 38% indicated that it had impacted their ability to get to work, including being late, missing work, or both, and 8.5% indicated that they had lost their job because of it.
- Of those who reported a domestic violence experience, 81.9% reported that it negatively affected their performance, most often due to being distracted, or feeling tired and/or unwell.
- 43.2% of those experiencing domestic violence reported they discussed it with someone at work.
- Over half (53.5%) of those reporting domestic violence experiences indicated that at least one type of abusive act had occurred at or near the workplace. Of these, the most common occurrences were abusive phone calls or text messages (40.6%) and stalking or harassment near the workplace (20.5%).
The report cited that “Canadian employers lose $77.9 million annually due to the direct and indirect impacts of domestic violence.”
Domestic Violence when Working from Home/Remotely
Workplace means “any land, premises, location or thing at, upon, in or near which a worker works” (s. 1). The OHSA has been found to apply when an employee is travelling for work, attending conferences, etc.
Domestic Violence: “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.”
However, the OHSA states the following at s. 3(1): “This Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.” The case law that references this section appears to relate to work injuries, hazardous conditions, etc. rather than the application of violence/harassment policies.
To the author’s knowledge, there is a dearth of case law with regard to the application of the OHSA’s policies in a work from home situation. From a common sense perspective, and given the definition of “workplace”, the wording of the obligations relating to domestic violence, and the application of such policies in non-workplace settings (social events, etc.), it is likely that employer obligations relating to harassment/violence do apply. The specific wording of any harassment/violence or work from home policies may also be important considerations when determining the specific extent of employer obligations in the circumstances. Given the unprecedented number of employees working from home, the case law may evolve and/or more explicitly address this important issue in the future.
In the circumstances, it is prudent for employers to ensure that employees stay as safe as possible when working remotely, including as it relates to domestic violence. Employers (and those who work with individuals who have experienced violence) should consider the following in the current context:
1) Continued Employment Income or Alternate Sources of Income
Economic independence and security is of utmost importance for survivors. Income loss makes it even more difficult to leave a violent or abusive relationship. In addition to the trauma being experienced, survivors frequently have the burden to pay for legal expenses, counselling, and moving costs. A loss or reduction in income could further endanger victims by keeping them in an abusive relationship and home.
Survivors of domestic violence and those who work with them should familiarize themselves with any domestic violence leaves under applicable employment standards legislation. For example, in Ontario there is job protected leave for those who experience domestic violence, with the first five days of the leave being paid.
If an employer is forced to close or reduce hours due to COVID-19 but is aware that a specific employee is experiencing domestic violence, they should make attempts to continue to pay the worker, at least partly. If a worker is laid off, the worker may wish to seek access to EI or the CERB (details below) and can ask an employer for assistance with same.
2) Secure Remote Access
Given that survivors may be subject to constant monitoring of their online activities, where possible, employers should offer Virtual Private Networks (VPNs) or other secure remote access (this also assists with safeguarding the employer’s own confidential information). Those who work with survivors may wish to inform them that accessing resources in this manner may be preferable to accessing them on a home computer, particularly one that is shared. In all cases, survivors should be informed of how to minimize their digital footprint online (clearing history, cookies, etc.) for their safety.
3) Sharing of Domestic Violence Resources
Survivors of domestic violence might not be aware of available supports and seeking out resources online may be even riskier if they are at home with their partner nearly 24/7. It’s possible that work emails may appear less “suspicious” to an abuser. Employers may wish to send out information about crisis lines and shelters so that workers know help is available (these emails shouldn’t be targeted to the specific individual only, but rather sent to all employees). Survivors may not be aware that women’s shelters can offer help over the phone – even if the conversation has to be short due to the abuser being nearby. https://www.sheltersafe.ca/ontario/ provides a list of women’s’ shelters across Canada.
4) Access to Employee Assistance Plans (EAPs)
In addition to sharing the domestic violence resources discussed above, employers should also ensure that EAPs remain in place during any physical office closure due to COVID-19. Those who work with survivors may wish to assist with inquiries regarding the availability of such programs through the survivor’s employer.
5) Adapting Safety Plans
There is no easy answer for what safety plans should look like in the current circumstances. However, for those workers who have existing safety plans, employers should work with the survivor who is now at home or whose work has otherwise changed (or with the survivor’s professional providers) to ensure the safety plan that was in place is adapted to the new work environment to the extent possible.
6) Reducing Isolation while Social Distancing
The need to ensure social distancing to reduce the spread of COVID-19 has had the unintended effect of leading to increased isolation for many individuals. Given that abusers may force or apply pressure to victims to reduce contact with loved ones, the workplace can sometimes be the only place a survivor has regular contact outside the home. Therefore, employers should consider frequent phone and video calls with (all) employees to keep them engaged, and encourage open lines of communications.
Employment Standards Act, 2000
Domestic Violence Leave
Under s. 49.7(2) of the Employment Standards Act, 2000 (“ESA”), an employee who has been employed by an employer for at least 13 consecutive weeks is entitled to a leave of absence if the employee or a child of the employee experiences domestic or sexual violence, or the threat of domestic or sexual violence, and the leave of absence is taken for any of the following purposes:
- To seek medical attention in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.
- To obtain services from a victim services organization.
- To obtain psychological or other professional counselling.
- To relocate temporarily or permanently.
- To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
“Domestic or sexual violence” is not a defined term under the ESA. However, it may include physical, emotional, or psychological abuse; or an act of coercion, stalking, harassment, or financial control. A threat of such abuse is also covered.
A “child” is defined as “a child, step-child, foster child or child who is under legal guardianship, and who is under 18 years of age.”
An employee is entitled to a leave of up to 10 days as well as a separate leave of up to 15 weeks (s. 49.7(4)). The first five (5) days of leave in a calendar year are paid days, with the balance being unpaid. An employee is not entitled to a domestic or sexual violence leave if the employee committed the domestic or sexual violence (or threatened such action) themselves (s. 49.7(3)).
An employee who wishes to take up to 10 days of domestic or sexual violence leave must advise the employer that he or she will be doing so prior to the leave or as soon as possible after beginning it (s. 49.7(10) and (11)).
An employee who wishes to take the separate domestic or sexual violence leave of up to 15 weeks must advise the employer in writing that he or she will be doing so prior to the leave or as soon as possible after beginning it (ss. 49.7(13) and (14)). If an employee takes any part of a week as leave, the employer may deem the employee to have taken one week of leave (s. 49.7(12)).
An employer may require an employee to provide “evidence reasonable in the circumstances” to establish entitlement to the leave (s. 49.7(15)).
An employer must protect the confidentiality of any records that relate to an employee taking a domestic or sexual violence leave (s. 49.7(17)), subject to certain exceptions.
An employer cannot threaten, fire, or penalize in any other way an employee for taking or planning on taking a domestic or sexual violence leave.
For more information, please review the following link: https://www.ontario.ca/document/your- guide-employment-standards-act-0/domestic-or-sexual-violence-leave
For the specific legislative provisions, please see s. 49.7 of the ESA:https://www.ontario.ca/laws/statute/00e41#BK96
COVID-19 Job Protected Leave under the ESA
On March 19, 2020, the Ontario government introduced and passed amendments to the ESA that provides job-protected leave to employees related to COVID-19. The legislation provides unpaid job protection for employees unable to work for the following reasons:
- The employee is under medical investigation, supervision or treatment for COVID- 19.
- The employee is acting in accordance with an order under the Health Protection and Promotion Act.
- The employee is in isolation or quarantine.
- The employee is acting in accordance with public health information or direction.
- The employer directs the employee not to work in response to a concern of the
employer that the employee may expose other individuals in the workplace.
- The employee needs to provide care to a specified person for a reason related to COVID-19 such as a school or day-care closure.
- The employee is directly affected by travel restrictions and, under the
circumstances, cannot reasonably be expected to travel back to Ontario.
A “specified” person is defined as follows:
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee or the employee’s spouse.
- A child, step-child or foster child of the employee or the employee’s spouse.
- A child who is under legal guardianship of the employee or the employee’s spouse.
- A brother, step-brother, sister or step-sister of the employee.
- A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
- A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
- A son-in-law or daughter-in-law of the employee or the employee’s spouse.
- An uncle or aunt of the employee or the employee’s spouse.
- A nephew or niece of the employee or the employee’s spouse.
- The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
- A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
The legislation provides that an employee will not be required to provide a medical note if they take the leave, but the employer can still request “evidence reasonable in the circumstances.” The legislation is retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario, and will be in place while COVID- 19 is ongoing.
An employer cannot threaten, fire, or penalize an employee in any other way for taking or planning on taking a leave related to COVID-19.
Government Funding relating to Employment and Domestic Violence in the Context of COVID- 19
Canada Emergency Response Benefit (“CERB”)
- The Federal government has merged two previously announced benefits programs for Canadians who are out of or off work because of COVID-19. Specifically, the new benefit combines the Emergency Care Benefit and Emergency Support Benefit into the Canada Emergency Response Benefit (CERB).
- The CERB provides up to $2,000 a month for sixteen (16) weeks to Canadians who have either lost their job or are off sick or taking care of their children because of COVID-19. The CERB is not available to those who voluntarily quit.
- The CERB rolled out on April 6, 2020 and individuals have been receiving the assistance approximately 3-5 days after applying by direct deposit.
- For those who applied for EI but had not started receiving benefits, their application would likely be rolled into the CERB. Individuals may still receive EI if they are eligible after the CERB benefit is exhausted.
Employment Insurance (“EI”)
- EI benefits are up to 55% of average insurable weekly earnings, up to a maximum yearly insurable earnings amount of $54,200. This means an employee can receive up to a maximum amount of $573 per week.
- EI regular benefits is available for those who have been laid off or had their employment terminated. There is a one week waiting period. EI benefits can be received from 14 weeks up to a maximum of 45 weeks, depending on the unemployment rate in the specific region at the time of filing and the amount of insurable hours the worker has accumulated in the last 52 weeks or since the last claim, whichever is shorter.
- EI sickness benefits is available up to a maximum of 15 weeks to those who are unable to work because of illness, injury or quarantine. Due to the COVID-19 crisis, the one week waiting period has been waived and there is no need for a medical certificate.
Wage Subsidy Program
- The CEWS is available to all businesses (regardless of size or the number of employees) whose revenues have decreased by at least 30% (15% for March) for specified qualifying periods between March 15, 2020 and June 6, 2020.
- The program applies to non-profits, charities, and businesses.
- Under the program, 75% of employees’ salaries are covered on the first $58,700 that
employees earn – up to a maximum $847 per week (employers will be reimbursed).
- Employers are encouraged to top up the remaining 25% of employees’ salaries (but are not required to do so).
- The CEWS is applicable to employees other than those who have been without remuneration for 14 or more consecutive days in the eligibility period, i.e., from March 15 to April 11, from April 12 to May 9, or from May 10 to June 6.
Funding for Vulnerable Individuals
- On March 18, 2020 Prime Minister Trudeau announced that the Canadian government will provide $157.5 million to address the needs of Canadians experiencing homelessness.
- The government will also provide up to $50 million to women’s shelters and sexual assault centres, including facilities in Indigenous communities, to help with their capacity to manage or prevent an outbreak.
- The Government of Canada will give $7.5 million in funding to Kids Help Phone to provide young people with additional mental health support.
Behzad Hassibi is a lawyer with Israel Foulon LLP, one of Canada’s leading employment and labour law firms, representing both employers and employees. Behzad can be reached at 416.640.1550 or at firstname.lastname@example.org.