The Work Place Harassment and Violence Prevention Regulations are set to come into force on January 1, 2021, placing new and significant obligations on federally-regulated employers for preventing harassment and violence in the workplace.
The Regulations replace Part XX of the Canadian Occupational Health and Safety Regulations portions of the Canada Labour Standards Regulations, as well as occupational health and safety regulations related to aviation, maritime, oil and gas, and on-board trains.
As of January 1, 2021, Part II of the Canada Labour Code (the Code) will treat workplace violence and harassment, including sexual harassment, as occupational health and safety issues. Currently there are two different parts of the Code that deal with workplace violence and sexual harassment. Workplace violence as an occupational health and safety issue is addressed under Part II of the Code. Sexual harassment as a labour standard issue is included under Part III of the Code. The movement of all protections to Part II of the Code ensures application to all employees and former employees in the federally regulated private and public sectors. The current components under Part III of the Code do not protect employees in the federally regulated public sector – the federal public service or parliamentary employees.
Policies, Reporting Requirements and Review
The New Regulations require employers to work together with either their policy committee, workplace committee or health and safety representatives (their “partner”) to develop one workplace policy that addresses both harassment and violence. The New Regulations set out specific content that the policy must include. The policy must be jointly reviewed by the employer and their partner at least once every three years. The policy is to be made readily available to employees.
Additionally, employers must assess the risk of workplace harassment and violence. This includes working with the applicable partner to identify risk factors in the workplace, and developing and implementing preventative measures. This assessment must be monitored for accuracy and updated to reflect any changes to risk factors or preventative measures.
The employer and their partner must also develop emergency procedures to be implemented if a harassment or violence occurrence poses an immediate danger to the health and safety of an employee or if there is a threat of an occurrence. These procedures must be reviewed jointly by the employer and their partner after every implementation of the emergency procedures. They must also be readily available to employees.
Record-keeping is essential to compliance with the New Regulations. Employers must keep records on every incident of harassment and violence in the workplace and provide a report to the Labour Program on or before March 1 of each year. There are a number of specific items which the report must contain. Additionally, the employer must retain numerous specific health and safety records for its workplace for a period of ten years.
Training and Support
Employers must provide mandatory training on harassment and violence prevention to their employees under the New Regulations. While a practice of many employers, this is not a requirement under the current legislation. The training must be identified or developed jointly with the employer’s partner. There are a number of required elements which must be incorporated in order for the training to be in compliance with the legislation. Training must be provided within three months after an employee commences employment (or within one year after the New Regulations came into force for existing employees) and then at least once every three years after that. Employers are also required to undergo the training pursuant to the same timelines.
Further, as of January 1, 2021, employers must make information about the support services with respect to violence and harassment in their geographical area available to employees. They must also describe the support measures available to employees in their workplace harassment and violence prevention policy.
As part of the resolution process, an employer is required to designate a person or work unit as the “designated recipient” to whom notice of a harassment or violence occurrence may be provided. The designated recipient is required to receive a complaint where an employer is either the principle party or the responding party to the complaint. They must undergo training before assuming this role and participate in training at least once every three years.
To encourage employees to come forward, employers are required to put in place strong privacy protections under the New Regulations. Employers must describe in their workplace harassment and violence prevention policy how they will protect the privacy of the persons involved in:
- A harassment or violence occurrence, or
- The resolution process for an occurrence.
If an investigator conducts an investigation, the final report must not reveal the identity of the persons involved in:
- A harassment or violence occurrence, or
- The resolution process for an occurrence (such as the complainant and the individual alleged, witnesses and any other persons).
The Regulations have been published in Part II of the Canada Gazette approximately six months ahead of the coming into force date to allow employers time to prepare to meet the new requirements. The Minster of Labour will review the provisions of Part II of the Code related to harassment and violence every five years.
There are very specific timelines and procedures that employers are required to follow in responding to incidents of harassment and violence starting January 1, 2021. Federally-regulated employers should carefully review these requirements to ensure that their policies are in compliance and that they have the appropriate mechanisms in place to meet the standards set out in the New Regulations.
The MLT Aikins Labour and Employment group is available to assist employers in ensuring their operations and policies meet these new standards.