Canada: New Anti-Bullying Policies In British Columbia Come Into Effect On November 1st - Are You Ready?

British Columbia Workers' Compensation Act (the WCA) has been amended to specifically to address bullying and harassment in the workplace.  The amendments became effective July 1, 2012, and broadened the circumstances in which an employee may be entitled to compensation for a mental disorder (see our previous blog post here). The amendments provide that a worker may be entitled to compensation under the WCA if the mental disorder is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment.  Previously, a worker was only entitled to compensation for a workplace stress-related illness if the mental stress arose from an "acute reaction to a sudden and traumatic event".

In addition to broadening the definition of mental disorder, WorkSafeBC's Board of Directors has approved three Occupational Health and Safety Policies (the Policies) that clarify the role of employers, supervisors and workers in the prevention of workplace bullying and harassment in Sections 115, 116 and 117 of the WCA.  The Policies take effect on November 1, 2013 and WorkSafeBC expects that all parties - employers, supervisors and workers - will be compliant with them by this date.

The amendments and the Policies are reflective of a trend in Canadian occupational health and safety legislation, recognizing the importance of psychological health in the workplace, negative effects of bullying, and associated costs of same in the workplace and society. The amended legislation and Policies set out a number of steps that employers are required to take in order to be compliant.  In general, employers are to conduct a risk assessment of the workplace and consider if the nature of the workplace and its characteristics will give rise to an enhanced risk for bullying and harassment.  Employers are also required to develop or amend their existing policies, procedures and work arrangements to prevent bullying and harassment in the workplace.  WorkSafe BC will consider anti-bullying and anti-harassment procedures to be reasonable where they include: how and when investigations will be conducted; what will be included in the investigation; the roles and responsibilities of employers, supervisors, workers and others; follow-up to investigations (description of corrective actions, timeframe, dealing with adverse symptoms, etc.); and record keeping requirements.

WorkSafeBC has issued a tool kit of resources to help employers become compliant (available here).

It should be noted that the Rehabilitation Services and Claims Manual states that workplace stressors, such as bullying and harassment do not include interpersonal conflict unless it is abusive or threatening. This is an important distinction as not every isolated incident of disrespectful or inappropriate conduct will amount to bullying or harassment. Employers need to be able to investigate the root cause of conflict and where appropriate, make findings that the conduct is simply interpersonal conflict. The definition of bullying and harassment contained in the Policies does not contain an exception for interpersonal conflict but this does not mean that employers could not do so in their own policies and procedures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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