New federal violence and harassment prevention regulations aim to expand protection for employees in federally regulated workplaces
Over the course of the last year, the federal government has initiated significant amendments to the Canada Labour Code through Bill C-65 and its draft Workplace Harassment and Violence Prevention Regulations. The new regulations will replace the violence prevention provisions under the Canada Occupational Health and Safety Regulations, as well as parts of the Maritime Occupational Health and Safety Regulations and the On Board Trains Occupational Safety and Health Regulations.
The rationale underlying these changes is part of the federal government’s commitment to take action to ensure that federally regulated workplaces are free from harassment and violence as the continued pervasiveness of harassment and violence in federal workplaces remains a concern. These changes will likely have a significant impact on federally regulated workplaces and employers should take note.
Under Bill C-65, the definition of harassment and violence is expanded to include “any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee.” Further, employers’ obligations under the legislation are not limited to current employees but extend to former employees in relation to incidents of workplace violence and harassment if an employer becomes aware of an incident within three months of the employee’s departure. Policy committees, workplace committees and health and safety representatives also face new restrictions under Bill C-65 and will not be able to participate in investigations related to an occurrence of workplace harassment or violence.
Additionally, the new regulations propose mandatory training and policies for harassment and violence, among a number of other changes. Specifically, these proposed changes include requirements for employers to:
Jointly with the policy committee (or with the workplace committee or health and safety representative), develop a prevention policy and harassment and violence training that must be given at least every three years. The policy must outline how the organization will address harassment and violence in the workplace, as well as the ways the employer is informed of external dangers and how they can minimize those dangers. Employers will also have to provide instruction on the prevention policy, as well as crisis prevention, personal safety and de-escalation techniques, and how to respond appropriately to different types of occurrences.
Jointly with the policy committee (or with the workplace committee or health and safety representative), conduct workplace assessments and prevention measures to identify and protect against the risks of harassment and violence in the workplace. The assessment will need to be reviewed and updated every three years. The regulations also require a workplace assessment review in several circumstances where the resolution process cannot proceed, such as when the principal party wishes to be anonymous.
Jointly with the policy committee (or with the workplace committee or health and safety representative), develop and implement emergency procedures where an occurrence or threat of harassment or violence poses immediate danger to the health and safety of employees.
Make information available concerning support services for employees should they need them.
Adhere to the resolution process outlined in the regulations, which focuses on increased communication between the employer and the parties, requires employers to respond to every notification of harassment and violence in the workplace, and includes multiple options for resolution, such as early resolution, conciliation and investigation. There are also requirements surrounding the qualifications of the investigator, how they can be appointed, the types of reports they must submit, and how the employer will handle those reports.
Keep comprehensive records
Keep records of all notifications of harassment and violence in the workplace, the actions taken to address the notifications, the decisions made where they cannot agree and must do so jointly, as well as any delays to the timelines. Twice per year, employers must also report aggregated data on all early resolutions and conciliation to the policy committee, the workplace committee or health and safety representative. Employers must also report any incident in which an employee dies within 24 hours. Aggregated data on fatalities must be reported annually to the minister.
Public comments on the regulations were requested and have since closed. The regulations are set to come into force some time in 2020, but given the volume of changes required, employers should take the time to start developing the required policies and processes sooner rather than later.
Courtney Laidlaw is an associate with Turnpenney Milne LLP in Toronto, practising labour and employment law. She can be reached at (416) 868-1457 ext. 115 or firstname.lastname@example.org.