Employers should prepare now for changes in 2020: Experts
Federally regulated employers facing changes under Bill C-65 around workplace harassment and violence — set to come into force in 2020 — now have more details to work with after the government’s release of proposed regulations.
With these regulations, you’re seeing a shift towards a much more proactive system with more obligations on employers, said Malini Vijaykumar, a labour and employment lawyer at Osler in Ottawa.
“Some employers may think, ‘OK, well, I’m meeting my obligations with regards to workplace violence and harassment, because if somebody makes a complaint, I know what to do.’ But, in fact, these regulations require employers not just to kind of sit back and wait for complaints — they actually require employers to do, for example, proactive training, proactive workplace violence risk assessments. So there are more obligations than employers might think.”
And these are substantive requirements, she said.
“I think that’s why the federal government has released the proposed regulatory texts this early… so that employers can get ready for the changes.”
These regulations largely codify best practices, said David Foster, a labour and employment lawyer at Hicks Morley in London, Ont.
“The Canada Labour Code was short on substantive provisions in terms of violence and harassment before these changes. And this, to a large extent, echoes what other provincial jurisdictions like Ontario (have) done — but in some cases goes further.”
Overall, the proposed regulations align with the other jurisdictions, but the primary area where there is a difference is in the definition of harassment and violence on a full continuum of inappropriate behaviours, from teasing and bullying to physical violence, said Christopher Simard, spokesperson for Employment and Social Development Canada.
“Further, Bill C-65 ensures that employer obligations also apply to former employees in relation to occurrences of harassment and violence if the occurrence becomes known to the employer within three months after the day on which the employee ceases to be employed. However, British Columbia, Quebec and Saskatchewan have also moved in this direction and currently allow former employees to bring forward a complaint.”
As part of the new rules, employers would be required to jointly develop a prevention policy that outlines information on how they will address harassment and violence.
The policy must also outline how an employer is to be informed of external dangers — such as family violence and stalking — that could result in harassment and violence, and the measures they may implement to minimize those dangers.
It’s a fairly standard interpretation, said Foster.
“We’re talking about family violence and domestic violence. That’s recognized as a hazard that can show up in the workplace in other jurisdictions, as well.”
It’s not just about how employees relate to each other or their managers — there must also be consideration of whether employees are experiencing, for example, intimate partner violence at home, said Vijaykumar.
“Could that pose a threat to their safety in the workplace or to the safety of other employees? And how is the employer going to deal with that if it comes up?”
But the regulations aren’t exact, she said.
“The measures themselves are supposed to be contextualized to the workplace and to that employer’s needs. All the regulations provide is an obligation on the employer to develop measures — whatever those suitable measures might be.”
As part of the resolution process, employers would be required to respond to every notification of an occurrence of harassment and violence — within five days.
“Employers now have five days to confirm that they have this notification, let the parties know or the applicable party know how the policy can be accessed, explain the resolution process, and let them know that they can get representation during the resolution process,” said Vijaykumar.
There are some very tight timelines, so it’s going to be “a little bit onerous for federally regulated employers to manage,” said Shane Todd, a partner at Fasken Martineau DuMoulin in Toronto.
“I’m hoping they do what the Ontario government did, which was a lot of education in advance, even after they go live. And there was more education rather than hard enforcement right out of the gate, because I think that (employers will) need some time to get up to speed on things.”
There are then three ways to resolve a dispute: early resolution, conciliation (both within 180 days) and investigation.
With the three-pronged process, employers must make every reasonable effort within 90 days to try to settle complaints, he said.
“If they can’t, then you’re either headed into conciliation or into an investigation conciliation, and (the government hasn’t) really provided much guidance on this. Essentially, it sounds like a mediation process. And if both parties can agree on who will do the conciliation, then it goes through whatever that process is — I guess it’s a structured mediation. And if you settle it that way, great, but there’s no guidance in the regulations about how and when that needs to be done. It says only that it’s only available if everybody agrees, and that it has to be done within 90 days.”
But depending on who’s involved, 180 days is not a lot of time, said Todd, “particularly if you want a high-profile experienced mediator — these people are booked for months, sometimes years, in advance.”
The regulations also propose a resolution process that “focuses on greater communications,” said the government, by requiring monthly updates on the investigation.
The system “is really focused on putting pressure on the employer to provide monthly status updates, respond within certain times, so that the complaint to the resolution process is held to be completed within a certain time frame, or at least your progress,” said Vijaykumar.
The resolution process would be much more detailed than what is in place now, said Todd.
“And maybe there are pros and cons to that in providing certainty to victims who are experiencing workplace violence, but from an employer compliance perspective, this is another thing I have to get my staff up to speed on. It’s another cost, it’s another process I have to keep an eye on.”
If the employer can’t agree on a competent person for the investigation within 60 days, it can apply to have someone appointed, he said.
“The person who investigates obviously has to be neutral, they have to be properly trained, they have to have experience. And so I wonder if, currently, many internal people will meet these requirements? Because they’re very detailed — you have to have knowledge training and experience relevant to harassment and violence in the workplace.”
The approach is slightly different than what’s seen in the Ontario context, where workplace committees are often involved in policy review and development, said Foster.
“But even these regulations do make it clear that the workplace committee isn’t involved in the investigation of an actual incident. And that’s an important measure to preserve the privacy of the parties involved.”
Once the investigation is done, the employer must file two reports, one that is more detailed, the other which is more of a summary, with analysis, findings and recommendations, said Todd.
“I guess the purpose of that… is that it could be shared more broadly, for the purposes of preventing future incidents. So (that means) a little bit more work on the investigators,” he said.
“It’s probably good information for employers to have because you’ll be able to see larger trends: ‘We have a concentration of issues in this particular workplace or in these particular types of reporting scenarios.’ And so it might be useful for employers who want to take proactive steps to create things going forward. But it’s something that (they’re) not currently keeping track of.”
The recommendations in the summary report must also be implemented, so that puts the pressure on employers to take active steps, said Vijaykumar.
Employer training around harassment and violence would have to be delivered at least every three years, according to the government, and provide instruction on the prevention policy, including crisis prevention, personal safety and de-escalation techniques.
The training is going to be specific to the culture and nature of the workplace, said Vijaykumar.
“There is some flexibility worked in to account for the particular needs of that particular workplace and what might work for the employer and employees there.”
These requirements are more detailed than what is required now, which is more a general training obligation without specifics, said Todd.
“Now… you have to train on the policy, you have to train on the relationship between harassment and violence and grounds of discrimination. And then you have to talk about crisis prevention, de-escalation techniques, and how to respond differently in different scenarios.”
While more is required, said Foster, “it would be indicative of best practices in the industry.”
But overall, considering the proposed changes, it would be wise for employers to look at their existing violence harassment policies, he said, “and see if they address the substantive provisions.”
And since the government has already consulted with a significant number of stakeholders and industry representatives, said Vijaykumar, it’s “quite likely that (the regulations will) be passed in a form if not identical, at least very similar, to this.”
Unless there’s any major pushback, this is likely to be what the regime looks like going forward, said Todd.
“And a lot of it isn’t going to be controversial. These are things that employers are familiar with: develop a policy, do an assessment, create some procedures, provide training,” he said. “Those things aren’t going to require much work for most employers — they probably will have that already.”
Canadians speak out
In developing the regulations supporting Bill C-65, the federal government held roundtable discussions with various stakeholders. The final phase involved an online survey reviewing the proposed regulatory framework, with 1,018 Canadian respondents:
Five days is appropriate to respond to a notification of harassment and violence
• Yes (86 per cent)
• Less than five days (six per cent)
• More than five days (five per cent)
Monthly updates on the status of the resolution process are appropriate
• Yes (85 per cent)
Two months is appropriate for parties to agree on an investigator
• Yes (80 per cent)
• More than two months (10 per cent)
• Less than two months (five per cent)
Six months is appropriate to implement investigator’s recommendations
• Yes (78 per cent)
• More than six months (11 per cent)
• Less than six months (six per cent)
The appropriate frequency of prevention training
• Annually (54 per cent)
• Every three years, unless required more frequently (28 per cent)
• As required (nine per cent)