Labour and Employment Law Blog

The new Work Place Harassment and Violence Prevention Regulations, SOR/2020-130 (the “Regulation”) and corresponding changes to the Canada Labour Code (the “Code”) come into force on January 1, 2021. The amendments introduce significant changes to how federally regulated organizations are required to prevent and address workplace harassment and violence, and set out specific requirements for workplace harassment and violence policies.

Key changes include:

“Harassment and Violence”

The amendments to the Code 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.”

Workplace Assessment

Employers are required to identify risk factors, internal and external to the workplace, which contribute to harassment and violence in the workplace, taking into account:

• the culture, conditions, activities, and organizational structure of the workplace;
• circumstances external to the work place, such as family violence, that could give rise to harassment and violence in the work place;
• any reports, records and data that are related to harassment and violence in the work place;
• the physical design of the work place; and
• the measures that are in place to protect psychological health and safety in the work place.

After risk factors are identified, employers must develop and implement preventative measures to respond to the risk factors.

The workplace assessment and development of preventative measures must be conducted jointly with the occupational health and safety committee or representative, as the case may be (referred to in the Regulation as the “Applicable Partner”). Workplace assessments must be updated at least every three years.

Emergency Procedures

Employers must work with their Applicable Partner to develop emergency procedures to be implemented if an occurrence of workplace harassment or violence poses an immediate danger to the health and safety of an employee.

Policy

Employers and their Applicable Partner must develop a Workplace Harassment and Violence Policy. There are detailed requirements for what must be included in the policy, including:

• Mission statement
• 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
• Description of the risk factors that contribute to workplace harassment and violence
• Summary of the training the employer will provide
• Summary of the resolution process (i.e. filing complaint, informal resolution, investigation)
• Summary of emergency procedures in place
• Recourse available to persons involved in an occurrence of workplace harassment or violence
• Description of support measures available to employees
• Measures implemented to protect the privacy of those involved in an occurrence of workplace harassment or violence
• Name and contact details of designated recipient

Resolution Process

The Regulation requires employers to follow a detailed process when attempting to resolve alleged occurrences of workplace harassment or violence, including informal dispute resolution, conciliation, and investigation procedures. The Regulation provides the alleged victim of workplace harassment or violence with more input into the resolution process than under the previous regulatory scheme. A significant change is that former employees can bring complaints for up to three months after their employment terminates.

Training

Employers are required to develop and provide training on workplace harassment and violence. Initial training must occur prior to January 1, 2022. Updated training must then occur at least every three years and within three months of a new employee commencing employment.

Support Measures

Employers must make available to employees information regarding medical and psychological support services available within their geographic area.

Record Keeping and Reporting

Employers are required to keep extensive records related to workplace harassment and violence for 10 years. The Regulation requires annual reporting to the Minister on a number of issues, including, amongst other items:

• the total number of occurrences broken down by whether they were related to sexual harassment, non-sexual harassment, violence and/or a prohibited ground in the Canadian Human Rights Act;
• the types of professional relationships between the principal and responding parties;
• the means of resolution of the complaints; and
• the average time it took to complete the resolution process.

Given the extensive requirements set out in the Regulation, we recommend that federal employers review and revise their workplace harassment and violence policies and procedures to ensure they are compliant. Effective January 1, 2021, the Regulation will govern any complaints of workplace harassment or violence. Employers have until January 1, 2022 to have policies and procedures in place and training completed.

The lawyers in Lawson Lundell’s Labour, Employment & Human Rights Group are experienced in developing workplace harassment and violence policies for federal employers, and would be pleased to assist your business in ensuring compliance with regulatory requirements.