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Fed gov’t expands employer duties to address violence and harassment

Notebook that says 'Workplace Harassment' on it
Legislation aimed at preventing workplace violence and harassment and expanding protection to more federally-regulated workers will come into force on January 1, 2021.
The federal government has published Workplace Harassment and Violence Prevention Regulations in support of Bill C-65 changes to the Canada Labour Code (the Code) which were passed in October 2018. With regulations finally in place federally-regulated employers now have significant duties to prevent and protect against workplace violence and harassment. Employers in this jurisdiction will also be required to take the prescribed steps to respond to and resolve occurrences of violence and harassment, including those raised by former employees.  
The new regulations apply to all workplaces covered under Part II the Code, including federally regulated private sector, the federal public service and parliamentary workplaces. The regulations replace Part XX (Violence Prevention in the Workplace) of the Canada Occupational Health and Safety Regulations, part of the Canada Labour Standards Regulations, and health and safety regulations governing aviation, maritime, oil and gas, and on board trains.

New employer obligations

The new regulation prescribes a wide range of specific employer obligations. The following are some key requirements:
  • Perform an assessment to identify the risk factors both internal and external to the workplace that might contribute to harassment and violence.
  • Develop and plan to implement preventive measures designed to address each risk. Worker and employer representatives performing this task must be qualified by virtue of training, education or experience. This must be done within six months of the regulations coming into force, in other words no later than July 1, 2021.
  • Monitor risk factors and preventive measures on an ongoing basis and update when necessary, at the very least, every three years.  
  • Prepare workplace harassment and violence prevention policy. It must contain a range of prescribed elements including a mission statement, roles for various workplace parties, risk factors, along with summaries of the complaint and resolution process and emergency procedures in situations of immediate danger. The policy must be reviewed and updated following any change to any element or, at the very least, every three years.
  • Ensure privacy protection. The specifics must be spelled out in the workplace policy.
  • Ensure workplace parties are aware of additional recourse options. For instance, their right to pursue action through the Canadian Human Rights Act, the Criminal Code or a grievance procedure.
  • Provide employees information about medical, psychological or other support services outlined in the policy and others available within their geographical region.
  • Provide training to employees, designated complaint recipient and the employer. At a minimum, retraining must occur every three years or when training elements have been updated or the employee is assigned a new activity or role.
  • Ensure the complaint and resolution processes are carried out as prescribed including contacting the person who is the object of the occurrence within seven days, informing them of the steps in the resolution process and their right to representation. Equally important is the requirement to complete the resolution process within a year.
  • Keep records of every occurrence and report annually to the Labour Program.

The employer will also need to work jointly with worker representatives to meet many of these obligations, including:
  • carrying out workplace assessment and developing and implementing preventive measures
  • developing workplace policy
  • developing or identifying training
  • identifying list of investigators, and
  • deciding which recommendations from investigator report to implement.

New definition

Bill C-65 amendments to the Code already replaced the definitions for violence and sexual harassment with a new broader definition for harassment and violence as “any action, conduct or comment, including of a sexual nature, which 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.”
This new definition incorporates workplace harassment into the Code for the first time. It also incorporates psychological injury or illness, requiring federally-regulated employers to protect employees from psychological harm in addition to physical harm.

Obligations to protect parliamentary workers

Workers on Parliament Hill have long been denied basic health and safety protections afforded others in federally-regulated workplaces, a point of contention for workers and their representatives for decades. Bill C-65 also amended the Parliamentary Employment and Staff Relations Act (PESRA) extending the health and safety obligations outlined in Part II of the Code and now the new regulations to these workers in addition to those in the federally regulated private sector and the federal public service. 

Ontario legislation lacking

While not perfect, these new federal requirements go beyond the current legislative framework for workplace violence and harassment in Ontario for provincially-regulated employers. For instance, the Occupational Health and Safety Act (OHSA) does not require employers to assess for harassment risk factors or to take steps aimed at preventing harassment. There is also no requirement to work jointly with worker representatives in the development of workplace violence and harassment policies or the workplace violence assessment process. The OHSA also fails to mandate a time limit to complete the resolution process following a complaint. Health and safety activists continue to call on government to amend these omissions as an important next step towards healthier work environments. 

Harassment and violence remain pervasive

Six of every 10 employees surveyed as part of the federal public consultation that helped to inform these legislative amendments reported having experienced harassment. Thirty per cent said they had experienced sexual harassment, 21 per cent reported experiencing violence, and three per cent said they had experienced sexual violence. Forty-one per cent said no attempt was made to resolve an incident they reported. For those who’ve experienced violence or harassment and didn’t report the incident, fear of reprisal is often the reason cited for their silence. 

WHSC can help

For our part, the Workers Health & Safety Centre (WHSC) offers a range of resources and a three-hour Workplace Violence and Harassment Prevention Training program designed to help workplace parties better understand workplace violence and harassment and to fully comply with legal obligations focused on prevention.
To learn more: 
Call:   1-888-869-7950 and ask to speak to a WHSC training services representative.