As of January 1, 2021, federally regulated employers must comply with new workplace harassment and violence prevention obligations. These obligations stem from amendments made to the Canada Labour Code (Code) by way of Bill C-65, as well as the new Work Place Harassment and Violence Prevention Regulations (Regulations) which replaced, among other things, Part XX of the Canada Occupational Health and Safety Regulations.
OVERVIEW OF THE NEW OBLIGATIONS
Below is a summary of the new obligations that federally regulated employers must meet.
1. Prevention and Protection Measures
Under the new provisions of the Code, an employer must take internal measures to prevent and protect against workplace harassment and violence, respond to occurrences of harassment and violence and provide support to affected employees. These preventive measures are set out in the Regulations and summarized below.
An employer must carry out, jointly with the policy committee or, when there is no such committee, the workplace committee or health and safety representative (referred to in the Regulations as the "applicable partner"), an assessment to identify the internal and external risk factors that may contribute to harassment and violent behaviour in the workplace. In doing so, the employer must take into account, among other things, the culture, working conditions, organizational structure and physical design of the workplace, as well as reports, records and other data pertaining to workplace harassment and violence.
Once the risk factors have been identified, the employer has 6 months to develop and implement, jointly with the applicable partner, preventive measures that will, as much as possible, either mitigate the risk of harassment and violence in the workplace or avoid creating or increasing such risk.
The workplace assessment must be carried out by a person who is qualified to do so by virtue of their training, education or experience.
The employer must review and, if necessary, update the workplace assessment every three years.
Workplace Harassment and Violence Prevention Policy
The employer and the applicable partner must jointly develop a workplace harassment and violence prevention policy, which must expressly contain, among other things:
- A summary of the training to be provided in relation to workplace harassment and violence
- A summary of the resolution process
- A description of the measures taken by the employer to protect the privacy of individuals involved in an occurrence
- The emergency measures to be implemented when an occurrence poses an immediate danger to the health and safety of an employee
- The support measures available to employees
The policy and its related training must be updated at least every three years. Furthermore, such training must be updated to take into account any changes made to the policy.
2. Workplace Harassment and Violence Prevention Training for Employees
Under the new provisions of the Code, employers must ensure that all employees, including those with supervisory or managerial responsibilities, receive harassment and violence prevention training and are informed of their rights and obligations in relation to harassment and violence. Furthermore, employers must ensure that the person designated to receive complaints relating to occurrences of harassment and violence (referred to in the Regulations as the "designated recipient") has knowledge, training and experience in issues relating to harassment and violence, as well as knowledge of relevant legislation.
The Regulations provide that the employer and the applicable partner must jointly develop or identify the workplace harassment and violence training to be given to employees, the employer and the designated recipient.
This training must be provided to employees within three months after the day on which their employment begins or, if their employment began prior to January 1, 2021, before December 31, 2021. Training must then be renewed at least every three years, and following any update to the training or an employee's assignment to a new role that involves an increased or specific risk of workplace harassment or violence.
3. Investigation, Records and Reports on Occurrences of Harassment and Violence
Under the new provisions of the Code, employers must investigate, record and report all occurrences of harassment and violence known to them, in accordance with the provisions of the Regulations.
The resolution process for an occurrence of workplace harassment or violence is strictly governed by the Regulations and includes the following steps:
Notice of an Occurrence
The notice of an occurrence may be addressed to either the employer or the designated recipient. However, it must be given to the designated recipient when the employer is a party to the occurrence. The notice may be provided either orally or in written form by the complaining party (referred to in the Regulations as the "principal party") or a witness, who may remain anonymous. A notice must include the name of the principal party and that of the party allegedly responsible for the occurrence (referred to in the Regulations as the "responding party") as well as the date and a detailed description of the occurrence.
Response to a Notice of an Occurrence
The employer (or designated recipient) must contact the principal party within seven days of the date on which the notice of an occurrence was given to inform them, among other things, that the notice has been received. The employer must also inform the principal party of the steps in the resolution process and the possibility of representation during this process.
If a notice of an occurrence is provided by a witness who is not anonymous, the employer or designated recipient must, within seven days after the day on which the notice is provided, contact that witness to confirm that their notice has been received.
When communicating with the responding party, the employer or designated recipient must provide them with the same information given to the principal party.
The Regulations emphasize conciliation and demonstrate a clear legislative intent to promote early resolution and discussion as a means of resolving complaints of workplace harassment and violence. To this end, the Regulations provide that the employer or designated recipient and the parties involved are to make reasonable efforts to resolve the occurrence, and that these efforts are to begin no later than 45 days after a notice is provided.
As part of these reasonable efforts, the employer or designated recipient must carry out a review to determine whether the notice of occurrence describes an action, conduct or comment that meets the new definition of "harassment and violence" set out in the Code. If the employer or designated recipient and the principal party determine jointly that the occurrence described in the notice does not constitute an occurrence of harassment and violence within the meaning of the Code, the complaint is to be considered resolved.
The principal party and the responding party may also attempt to resolve an occurrence by way of conciliation if they agree to do so and if they agree on a person to facilitate it.
If the parties are unable to resolve a complaint, the employer must carry out an investigation of the occurrence if the principal party requests it. Several procedures are to be followed for an investigation to be deemed in compliance with the Regulations.
Once the parties involved have been notified that an investigation is to be carried out, an investigator must be designated.
With regards to selecting an investigator, the Regulations provide that once the employer and the applicable partner have jointly developed or identified a list of persons who may act as an investigator, the employer may select a person from that list to act in that capacity for the investigation. If there is no such list, the investigator shall be a person agreed upon by the employer or designated recipient, the principal party and the responding party. If no agreement is reached within 60 days after the day on which the notice is provided, an investigator will be selected among the persons whom the Canadian Centre for Occupational Health and Safety identifies as having the requisite knowledge, training and experience to act in this capacity.
An investigation is to be completed with a report containing a general description of the occurrence, as well as the investigator's findings and recommendations to eliminate or minimize the risk of a similar occurrence. Copies of the report must be provided to the involved parties, the workplace committee or health and safety representative and, as applicable, the designated recipient. An investigator's report must not reveal, directly or indirectly, the identity of persons involved in an occurrence.
The resolution process will be considered complete once the employer implements the recommendations made by the investigator in its report and selected jointly with the workplace committee or the health and safety representative.
The employer must ensure that the resolution process is completed within one year after the day on which notice of the occurrence is provided. If the principal party or responding party is temporarily absent from work for more than 90 consecutive days after the day on which notice of the occurrence is provided, the employer must ensure that the resolution process is completed no later than six months after the day on which the party returns to work.
Records and Reports
No later than March 1 of each year, employers must provide the Minister of Labour with an annual report that details information on the harassment and violence complaints related to their workplace. Furthermore, if an occurrence results in the death of an employee, the employer must report the occurrence to the Minister of Labour within 24 hours after becoming aware of the employee's death. The required contents of these reports are set out in the Regulations.
Finally, the employer must keep a record of each notice of an occurrence. This record, along with copies of all investigation reports and annual reports, are to be kept for a period of 10 years.
4. Extension of Employer Obligations to Former Employees
It should be noted that the obligations of an employer with respect to an occurrence of workplace harassment and violence, as described above, also extend to former employees, if the occurrence is brought to the attention of the employer within three months after the day on which the former employee ceases to be employed by the employer.
Federally regulated employers should review their policies and practices related to the prevention of workplace harassment and violence to ensure their compliance with the new provisions of the Code and Regulations. Employers should also ensure that they are able to provide the required training to their employees and managers.
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