Federal OHS Violence & Harassment Prevention: 10 Key Changes January 1, 2021
Published:
June 15, 2021
Author(s):
As of January 1, 2021, federally regulated employers (such as banks, telephone and cable systems, most federal Crown corporations, interprovincial and international services such as shipping services, railways, and road and air transport) are subject to new workplace harassment and violence prevention responsibilities. 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) amendments to Part II: Occupational Health and Safety of the Canada Labour Code and new Work Place Harassment and Violence Prevention Regulations together establish a new occupational health and safety legal regime for the prevention of harassment and violence in both federally regulated public and private sector workplaces.
Like similar changes to provincial occupational health and safety legislation, such as that of New Brunswick, Newfoundland and Labrador, and Prince Edward Island, the new federal regime expands both the protection afforded to employees, and the obligations imposed on employers, beyond workplace violence to workplace harassment. Here are 10 key changes to federally regulated employers’ occupational health and safety workplace harassment and violence prevention obligations.
1. Wider Scope of Coverage
The changes broaden the scope of the employees protected, and the conduct protected against, under the Code.
Consolidation of violence & sexual harassment regimes. The changes consolidate the previously separate workplace violence and the sexual harassment regimes applicable to all federally regulated employers into a single regime. This means the full scope of the violence and harassment (including sexual harassment) prevention obligations now apply to all federally regulated public sector and private sector employers.
Former employees. If a workplace harassment or violence “occurrence” (that is, a complaint) becomes known to an employer within three months of the cessation of employment (which the Minister of Labour can extend if the former employee applies), the employer must still fulfill its obligations in relation to the affected employees.
Expanded Purpose. The purpose of Part II: Occupational Health and Safety of the Canada Labour Code now expressly includes the prevention of workplace-related occurrences of harassment and violence, and of physical or psychological injuries and illnesses. Previously, the purpose was limited to a focus on preventing workplace accidents and injuries to health.
New definition of “harassment and violence”. Reflecting the broader purpose, the new Regulations 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 prior regulation only defined “violence”, leaving it to employers to determine whether a harassment allegation met the (former) definition of “violence”, triggering its obligations. In addition, the new definition explicitly includes “psychological” as well as “physical” injury or illness, leaving little doubt the definition also captures verbal or other non-physical conduct. And because it informs all of the employers’ obligations under the amended Code and the Regulations, the broadened definition effectively broadens the obligations of employers.
2. Broader Prevention Obligations
Under this new regime, prevention of workplace violence and harassment is one of the primary goals. Accordingly, employers now have the express duty to prevent to workplace harassment in addition to their existing duties in relation to workplace violence, and to provide “support” to affected employees.
Internal & External Risk Factors. As part of its obligation to identify risk factors that contribute to workplace harassment and violence, an employer must take into account the new, specific factors set out in the Regulations, which include both internal risk factors and external risk factors, such as family violence. While the employer is still obligated to carry out a workplace assessment, this assessment must now include the potential for workplace harassment and violence and be based on the new risk factors and the mandatory preventive measures. The person the employer directs to identify the risk factors or develop the preventive measures must also be qualified to do so by their training, education or experience. The employer and the OHS committee or representative (as the case may be) must together monitor the accuracy of the workplace assessment and, if necessary, update it in certain circumstances, but at least every three years.
Prevention Policy. The mandatory contents of the new workplace harassment and violence policy are more extensive than those of the former workplace violence policy, and will require employers to revisit, and potentially revise, existing policies to ensure they include the required elements.
Support. The Regulations expressly require employers to make available to all employees (not only those who lodge a workplace violence or harassment complaint) information about the medical, psychological or other support services available in their geographical area.
3. Extended Training Requirements
All employees must receive training in workplace harassment and violence prevention. The “employer” itself (understood to include supervisors, managers, directors, leaders, executives, business owners, or anyone else who has responsibility fulfilling the employer’s duties under the Regulations) is also required to undergo this training.
Content. The training must be specific to the workplace. Moreover, the mandatory elements of the training are more extensive than those for workplace violence, and incorporate the relationship between workplace harassment and violence and the prohibited grounds of discrimination under the Canadian Human Rights Act.
Timing. Employers must train employees who begin their employment on or after January 1, 2021 (the date on which the changes took effect) within three months after the day on which employment begins. Employees already employed as of January 1, 2021 (when the changes took effect), designated recipients, and the employer must undergo training by January 1, 2022.
Ongoing. Both employers and employees must undergo the training again at least once every three years.
4. Detailed Complaint Resolution Process
The Regulations implement a new, comprehensive internal complaint resolution process that details the steps the employer must take when a complaint of workplace violence or harassment (called a “notice of occurrence” in the Regulations) is received.
“Designated Recipient”. As part of this process, an employee can now either provide a “notice of occurrence” of workplace harassment and violence to their supervisor or to the “designated recipient”. The new regime requires the employer to select a person or work unit as the “designated recipient” to whom an employee can make a “notice of occurrence” of workplace harassment or violence. The employer must ensure that the designated recipient is properly trained before they step into this role, and that they continue to receive training at least once every three years. The employer or “designated recipient” must conduct an initial review of a “notice of occurrence” received to ensure it provides all required information. Where it does, the employer must contact the complainant (called the “principal party” in the Regulations) within a set time period and provide information about the employer’s prevention policy, the resolution process, and their right to representation. When the employer or designated party contacts the responding party, they must also provide this information to the responding party. Identified witnesses must also be advised that the employer or designated recipient received the notice.
Principal Party’s Choice. At any time, the principal party can end the resolution process by informing the employer or designated recipient that they choose not to continue with the process. Where this happens, the employer and workplace committee (or health and safety representative) must jointly review and, if necessary, update the workplace assessment.
“Informal” Resolution Opportunities. Formerly, the employer was obligated to “try” to resolve a workplace violence issue as soon as possible, but the Code didn’t include detailed parameters for reaching that resolution. The new regime implements two opportunities to “informally” resolve the “notice of occurrence”, within express time limits, before or during the investigation.
- Negotiation. Under the new regime, the principal party and the employer are required to attempt a negotiated resolution, with or without the responding party. The responding party is only involved in negotiations if the principal party has agreed it’s appropriate; otherwise, the employer (or designated recipient) need not contact the responding party. All parties ultimately involved must make every reasonable effort to resolve the matter.
- Conciliation. If the parties can’t reach a negotiated resolution, the principal party has the option of attempting to resolve the notice of occurrence via conciliation, but both the principal party and the responding party must agree to conciliation and on the conciliator.
Investigation. Where the parties haven’t reached a resolution through negotiation (or conciliation, if attempted), the employer must carry out an investigation if the principal party requests it. And while negotiation and conciliation are still possible during the investigation, they can’t be used to resolve the notice of occurrence once the investigator has provided their report.
Employer Action. An employer and the work place committee (or the health and safety representative) must jointly determine which of the recommendations set out in the investigation report are to be implemented, and the employer must implement those recommendations.
Ultimate Time Limit. The employer is now required to ensure the resolution process is completed within one year after the day on which the principal party provided the “notice of occurrence”.
5. Who Can Investigate
Previously, if the employer couldn’t resolve a workplace violence complaint with the employee, it was the employer’s obligation to “appoint” a “competent person” to investigate it. The new regime changes who can investigate a “notice of occurrence” and the selection process.
The List. Where the employer and the policy committee (or if none, the work place committee or the health and safety representative) (called the “applicable partner” in the Regulations) jointly developed or identified a list of people who can act as an investigator, the investigator will be a person from that list. If there’s no list, then the investigator must be someone who the employer (or designated recipient), the principal party, and the responding party agree to. If they can’t agree within the stipulated time, the Canadian Centre for Occupational Health and Safety will identify an investigator with the required knowledge, training and experience. This incentivizes employers to develop a list of investigators as soon as possible to maintain the greatest degree of control over the options, and ultimate selection, of investigators, and to ensure the ability to appoint an investigator and get the investigation process moving promptly.
Qualifications. The investigator’s qualifications are more finely tuned under the new regime. Any investigator proposed or selected must:
- Provide the employer, principal party and responding party with a written statement indicating they aren’t in a conflict of interest in respect of the occurrence; previously, they need only be, or be seen to be, impartial.
- Be trained in investigative techniques.
- Have knowledge, training and experience relevant to workplace harassment and violence.
- Have knowledge of Part II of the Code, the Canadian Human Rights Act, and any other legislation relevant to harassment and violence in the workplace; the prior requirement was more vague regarding knowledge of relevant legislation.
6. Investigation Report Requirements
As before, the investigator is required to produce a report. However, the new regime is more specific about:
- What the report must cover.
- Who’s entitled to receive a copy of the report.
- The privacy protections in the report, including not revealing (directly or indirectly) the identity of the parties involved.
7. Resolution Concerns Remedies
Where the employer implements the investigator’s recommendations, the resolution process is considered complete. However, an employee can raise concerns to the employer or designated recipient if they aren’t satisfied with the report’s conclusions or recommendations, or they believe the investigation was flawed. If the employer and employee can’t resolve these concerns, the employee can seek judicial review of the investigation. Likewise, where an employer doesn’t implement a recommendation in the investigator’s report and the employee believes this is a failure to protect their health and safety, the employee can file a grievance (in a unionized workplace) or human rights complaint, as applicable. Alternatively, the employee can refer the issue directly to the Head of Compliance and Enforcement as part of the Code’s internal complaint resolution process. The Head must investigate the matter unless they are of the opinion the matter was adequately dealt with or it’s otherwise an abuse of process. Based on the outcome of its investigation, the Head has the power to issue directions.
8. Expanded Reporting Obligation
Employers must now provide the Minister of Labour with an annual report regarding harassment and violence in the workplace, in addition to their existing obligation to report accidents, occupational illnesses and other hazardous occurrences known to them in the workplace.
9. New Record-Keeping Requirements
Employers must now keep certain designated records respecting workplace violence and harassment, and must do so for a period of 10 years.
10. Higher Penalty Cap
Other changes to the Code made by Regulations under Bill C-44 establish an administrative monetary penalties (AMP) regime for violations of Part II and III of the Code, meaning employers that fail to comply with the new workplace violence and harassment regime (as well as other OH&S obligations) are exposed to administrative fines of up to $250,000.
Please contact your McInnes Cooper lawyer or any member of our Occupational Health & Safety Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
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