New legislation amends OHSA, redefines harassment and puts more obligations on employers
The Ontario Government recently introduced Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters as a response to the Government’s “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” policy statement announced earlier this year.
Bill 132 will amend various existing statutes with respect to sexual violence, sexual harassment, and domestic violence. For employers, important changes will stem from Bill 132’s proposed amendments to the Occupational Health and Safety Act (OHSA), which include modifying the current definition of “workplace harassment” and imposing additional obligations on employers concerning their workplace harassment policies, programs and investigations.
Under Bill 132, the OHSA’s definition of “workplace harassment” will be expanded to include “workplace sexual harassment”, which is defined as:
1. 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
2. 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.
Notably, Bill 132 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.
Bill 132 will require an employer’s program to implement a workplace harassment policy under s. 32.06(2) of the OHSA to further set out:
· 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;
· How incidents or complaints of workplace harassment will be investigated and dealt with;
· That 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 investigation or corrective action, or is required by law; and
· 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 taken.
An employer will be required to renew its program at least annually and provide its workers with appropriate information and instruction on the contents of both the policy and program.
When faced with a “workplace harassment” incident or complaint, under Bill 132 an employer will be required to ensure that an appropriate investigation is conducted and that both the worker who has allegedly experienced harassment and the alleged harasser (if he is a worker of the employer) are informed of the results and of any corrective action that has been, or will be, taken. Notably, Bill 132 will allow an inspector to order an employer to have an investigation and report completed by an impartial third-party, at the employer’s expense.
Bill 132 passed first reading on Oct. 27, 2015. If passed, the provisions of Bill 132 relating to the OHSA will come into force either six months after receiving Royal Assent or on July 1, 2016, whichever is the later date.Sabrina Serino is an associate with the Employment and Labour Group with Dentons Canada LLP in Toronto. She can be reached at (416) 863-4385 or email@example.com. Sabrina's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.