Federally Regulated Employers Must Comply With New Workplace Harassment and Violence Prevention Laws
By Maria Tassou, Pallett Valo LLP
In order to protect workers in federally regulated workplaces, the federal government made changes to the Canada Labour Code regarding workplace harassment and violence prevention, which came into effect on 01 January 2021. The new Workplace Harassment and Violence Prevention Regulations (SOR/2020-130) (the Regulations) require federally regulated employers to implement certain policies and procedures to prevent and respond to occurrences of workplace violence and harassment.
Federally regulated employers are now required to file annual reports with the Minister of Labour by March each year to report, among other things, the number of occurrences of workplace harassment and violence that occurred in the preceding year, whether they were related to sexual harassment and violence, the locations where the occurrences took place, the number of occurrences that resulted in the death of an employee, the number of incidents that fell under each prohibited ground of discrimination set out in the Canadian Human Rights Act, and the average time it took to complete the resolution process.
Employers will need to move quickly to change their practices to comply with the new requirements. Starting 01 January 2022, failure to comply with the Regulations could lead to hefty monetary fines, along with the public naming of violating companies under the Administrative Monetary Penalties (Canada Labour Code) Regulations (SOR/2020-260).
Employers can also refer to interpretive guidelines published by the federal government (the Guidelines), which answer questions regarding the new harassment and violence provisions of the Code and Regulations.
The following is a summary of the obligations imposed on federally regulated employers as a result of the new Regulations.
Employers and their health and safety committee/representative must jointly carry out a workplace assessment that identifies risk factors for workplace violence and harassment and the development and implementation of preventive measures. Within six months after the risk factors are identified, the employer must develop and implement preventive measures to mitigate the risks. The assessment must be reviewed every three years.
Employers and their health and safety committee/representative must jointly develop a detailed workplace harassment and violence prevention policy. The policy must be made available to all employees. Employers must review their policy at least once every three years and after any change to an element of the policy.
Employers and their health and safety committee/representative must jointly develop emergency procedures that are to be implemented if an occurrence poses an immediate danger to the health and safety of an employee, or if there is a threat of such an occurrence. The emergency procedures must be made available to all employees. The emergency procedures must be reviewed and updated, if necessary, after every implementation of the procedures.
Employers and their health and safety committee/representative must jointly develop a training program on workplace harassment and violence to be provided to all employees. The program must be specific to the culture, conditions, and activities of the workplace. It must also include the elements of the prevention policy, a description of the relationship between workplace harassment and violence, the prohibited grounds of discrimination set out in subsection 3(1) of the Canadian Human Rights Act, and a description of how to recognise, minimise, prevent, and respond to workplace harassment and violence. Employers must review the training program at least once every three years. Employees must receive training within three months of their start date and must continue to undergo training every three years.
Employers must make information available to employees regarding the medical, psychological, or other support services that are available within their geographical area.
The Regulations provide a detailed procedure for resolving occurrences of workplace harassment or violence. Employers should familiarise themselves with this process so they can respond appropriately to such occurrences.
There are three different streams for resolution of a workplace harassment and violence occurrence:
- Negotiated resolution – The employer or designated recipient, the principal party, and any responding party must “make every reasonable effort” to resolve an occurrence through negotiations starting no later than 45 days after the notice is provided.
- Conciliation – If the parties agree, the complaint may be resolved through conciliation, where a person will facilitate the conciliation.
- Investigation – If the occurrence is not resolved through negotiation or conciliation, an investigation of the occurrence must be carried out if the principal party requests it. The investigator can be an individual on the employer’s preselected list of investigators, an individual that is agreed upon by the parties, or an individual identified from the Canadian Centre of Occupational Health and Safety. The investigator must provide a report that describes the occurrence, their conclusions, including what circumstances in the workplace contributed to the occurrence, and their recommendations to eliminate or minimise the risk of a similar occurrence. Employers and their health and safety committee/representative must jointly review the report and determine which recommendations should be implemented.
Generally, the employer must ensure that the resolution process is completed within one year after the notice of occurrence.
Records and Reports
Employers must keep and retain certain specified health and safety records for at least 10 years.
Maria TassouGGI member firm
Pallett Valo LLP
Law Firm Services
Mississauga (Greater Toronto), Canada
T: +1 905 273 30 22
Pallett Valo LLP is one of Ontario’s Top 10 Regional Law Firms. The firm practices in the areas of business law, commercial litigation, commercial real estate, construction, insolvency and corporate restructuring, employment and labour, and wills, estates, and trusts.
Maria Tassou is a member of the Employment and Labour Practice Group. Her practice focuses on employment law, administrative law, workplace investigations, management training, and privacy law. Maria also serves as Privacy Officer for the firm.
Published: GGI Insider, No. 113, May 2021 l Photo: Antonioguillem - stock.adobe.com