New Federal Workplace Anti-Harassment and Violence Requirements coming January 2021

Earlier this year, the Federal Government published new Workplace Harassment and Violence Regulations (the “Regulations”), along with Bill C-65, which will amend the Canada Labour Code (the “Code”). These changes come into force on January 1, 2021.

It is hard to believe January is now only a few weeks away. It has also been a challenging year for many employers, and these new requirements may understandably have been missed. For federally-regulated employers that have yet to consider and implement the necessary changes, however, there is still time!

The Regulations and Bill C-65 will significantly change how federally-regulated organizations must prevent and respond to incidents of workplace violence and harassment. While many employers already have in place processes to deal with workplace harassment or violence, these amendments will bring the Code in line with similar legislation already in effect in many provinces, including Ontario.

The key changes under the new regime include:

1. Harassment and Violence newly defined 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.”

2. Workplace Assessment: Employers will be required to identify internal and external factors that contribute to a risk of harassment and violence in the workplace. In conducting this assessment, the employer must take into consideration the following factors:

   1. the culture, conditions, activities and organizational structure of the work place;

   2. circumstances external to the workplace, such as family violence, that could give rise to harassment and violence in the workplace;

   3. any reports, records and data that are related to harassment and violence in the work place;

   4. the physical design of the workplace; and

   5. the measures that are in place to protect psychological health and safety in the workplace.

   Within 6 months of identifying any such risk factors, employers are required to develop and implement preventative measures to protect their staff. The workplace assessment must also be reviewed and updated at least every 3 years.

3. Emergency Procedures: Employers must work with their “applicable partner” (which could be the workplace Occupational Health and Safety Committee) to develop and implement emergency procedures to be activated in the event that an incident of workplace harassment or violence poses an immediate danger to staff health and safety.

4. Workplace Harassment and Violence Prevention Policy: Employers must work with their “applicable partner” to jointly develop and implement a workplace harassment and violence prevention policy. In developing this policy, employers must ensure that it includes the following:

   1. the employer’s mission statement regarding the prevention of workplace violence and harassment;

   2. a description of the roles of the employer, “designated recipient” (person or work unit who occurrences of workplace harassment and violence are reported to), employees and applicable partner;

   3. a description of the internal and external risk factors that contribute to workplace harassment and violence;

   4. a summary of the training the employer will provide;

   5. a summary of the resolution process;

   6. a summary of emergency procedures in place

   7. a description of how the employer will protect the privacy of persons involved in an occurrence or the resolution process;

   8. a description of any recourse available to persons involved in an occurrence of workplace harassment or violence;

   9. a description of support measures available to employees; and

   10. the name and contact details of the designated recipient of the complaint.

   Employers must ensure that every employee is provided with a copy of the policy (and take steps to record the same having occurred) and update and review the policy at least every 3 years.

5. Training: Employers must, with their applicable partner, jointly develop or identify training on workplace harassment and violence to be provided to employees. This training must be specific to the culture, conditions and activities of the workplace and include:

   1. the elements of the workplace harassment and violence prevention policy;

   2. a description of the relationship between workplace harassment and violence and the prohibited grounds set out in the Canadian Human Rights Act; and

   3. a description of how to recognize, minimize, prevent and respond to workplace harassment and violence.

   Training must be reviewed and updated as necessary at least every 3 years.

6. Resolution Process: The Regulations set out a detailed and comprehensive resolution process, marked by procedural requirements and applicable timelines (and can include negotiation, conciliation and formal investigation). It is further notable that even former employees may make complaints under the new regime up to 3 months following the cessation of their employment. Employers should look to incorporate the steps set out in the Regulations into their applicable policy and be mindful of the timelines within which various steps must take place.

7. Record Keeping and Reporting: Employers must keep detailed records related to incidents of workplace harassment and violence for 10 years. In addition, under the new regime, employers are required to remit an annual report to the Minster (on or before March 1 of each year) which must include (but is not limited to):

   1. business name and number;

   2. the name of a contact person;

   3. the number of occurrences of sexual harassment and violence as well as non-sexual harassment and violence;

   4. the number of occurrences that resulted in the death of an employee;

   5. the number of occurrences that feel under each prohibited ground of discrimination under the Canadian Human Rights Code; and

   6. the average time it took (in months) to complete the resolution process for an occurrence.

   Beyond that, if an occurrence of workplace harassment and violence results in a fatality, the employer must report to the Ministry within 24 hours of becoming aware of the employee’s death.

In light of these extensive new requirements, we recommend that federally-regulated employers revisit their existing workplace harassment and violence policies to ensure compliance and take steps, where necessary, to fill any gaps. While the Regulations will be in force as of January 1, 2021 to govern complaints of workplace harassment and violence, employers have until January 1, 2022 to develop and implement the requisite policies and procedures and complete required training.

Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. 613-238-4430 or info@vwlawyers.ca