The federal government has introduced significant obligations for federally-regulated employers with respect to preventing and addressing occurrences of workplace harassment and violence. The Work Place Harassment and Violence Regulations (the "Regulations"), and changes to the Canada Labour Code (the "Code") through Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act, and the Budget Implementation Act, 2017, No. 1, came into force on January 1, 2021 ("Bill C-65"). The new requirements apply to all federal workplaces covered under Part II of the Code, including the federal public service, the federally regulated private sector, and parliamentary workplaces.
Federally-regulated employers have long been required to ensure the health and safety of their employees, including instances of harassment and violence, pursuant to Part II of the Code. The current government felt the previous federal framework was fragmented, and believed changes were necessary to adequately address occurrences of sexual harassment and sexual violence.
In response to these issues, the current federal government proposed Bill C-65, which received royal assent in October 2018. The Bill aimed to strengthen provisions of the Code by creating a comprehensive approach that considers the full spectrum of harassment and violence. As part of the amendments to the Code, Part XX (violence prevention) of the Canada Occupational Health and Safety Regulations was repealed and replaced with the Regulations.
The New Framework
Under the new regime, federally-regulated employers are required to comply with a number of obligations in order to satisfy their duties under the Code to investigate, record, report, prevent and provide training with respect to workplace harassment and violence, including sexual harassment and sexual violence. The new framework requires employers to:
- Prevent incidents of harassment and violence;
- Respond effectively to these incidents if and when they occur; and
- Support affected employees.
Important aspects of the new framework for federally-regulated employers are summarized, in part, below:
The amendments to the Code define "harassment and violence" as:
"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, including any prescribed action, conduct or comment."
The Regulations impose a joint duty on both the employer and their "applicable partner". The applicable partner will vary from employer to employer, and will be:
- the health and safety representative, if the organization has up to 19 employees
- the workplace committee, if the organization has 20 to 299 employees
- the policy committee, if the organization has 300 or more employees.
Employers and their applicable partner are required to jointly assess and identify risk factors, internal and external to the workplace, which contribute to harassment and violence in the workplace. In performing their assessment, they must consider:
- the culture, conditions, activities, and organizational structure of the workplace;
- circumstances external to the workplace, such as family violence, that could give rise to harassment and violence in the workplace;
- any reports, records and data that are related to harassment and violence in the workplace;
- the physical design of the workplace; and
- the measures that are in place to protect psychological health and safety in the workplace.
Within six months after the risk factors are identified, employers and their applicable partner must develop and implement preventative measures to respond to the risk factors.
Workplace Harassment and Violence Prevention Policy
Employers and their applicable partner must jointly develop and provide employees with a workplace harassment and violence prevention policy (the "Policy"). The Policy must contain a number of elements, including:
- the employer's mission statement regarding the prevention of and protection against harassment and violence in the workplace;
- a description of the respective roles of the employer, designated recipient, employees, and the applicable partner;
- a summary of the training that will be provided, of the resolution process, of the emergency process, and of the manner in which the employer will protect the privacy of persons who are involved;
- a description of any recourse, that may be available to persons who are involved in an occurrence;
- a description of the support measures that are available to employees; and
- the name of the person who is designated to receive a complaint.
Workplace assessments and the Policy must both be jointly reviewed every three years and, if necessary, updated.
Employers and their applicable partner must jointly develop, make available, and implement emergency procedures that are to be applied if an occurrence or threat of an occurrence poses an immediate danger to an employee's health and safety. These procedures must be reviewed and, if necessary, updated each time after they are used.
Employers are required to develop and provide training once every three years on workplace harassment and violence to all employees (including supervisors and the designated recipient). Training needs to be tailored to the workplace, and must include:
- the elements of the employer's workplace harassment and violence prevention policy;
- a description of the relationship between workplace harassment and violence and the prohibited grounds of discrimination in the Canadian Human Rights Act; and
- information on how to recognize, minimize, and prevent harassment and violence.
Training must be completed within one year of the Regulations coming into force (by January 1, 2022), and for new employees, within three months of their start date.
The Regulations provide employers a detailed and comprehensive resolution process, including procedural requirements and applicable timelines. Employers are given a variety of processes with respect to the resolution of workplace harassment or violence occurrences, such as negotiated resolutions, conciliations and formal investigations. The Regulations provide the alleged victim of workplace harassment or violence with more input into the resolution process than under the previous regulatory scheme. Notably, former employees can make complaints under the new regime for up to three months following the end of their employment.
The Regulations set out timelines, conditions under which the processes are to be used, and the steps to be followed once a notice of occurrence is submitted. For example, the recipient of the notice of occurrence must provide a response within seven days to the principal party to the complaint, and must make efforts to resolve the complaint through a negotiated resolution within 45 days of receiving the notice.
Records and Reporting Requirements
Employers are required to maintain extensive health and safety records related to workplace harassment and violence for 10 years. The Regulations require employers to report on or before March 1 annually to the Minister on a number of items, including:
- the total number of occurrences, and specifics on the number of occurrences that were related to sexual harassment, non-sexual harassment, violence;
- the types of professional relationships that existed between the principal and responding parties;
- the means of resolution of the complaints; and
- the average time that it took to complete the resolution process for an occurrence.
Beyond these requirements, if an occurrence of workplace harassment and violence results in a fatality, the employer must report to the Ministry within 24 hours of becoming aware of the fatality.
Bottom-line for Employers
Given the extensive new requirements, all federally-regulated employers should review and update their workplace harassment and violence policies and procedures to ensure compliance with the Regulations.
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