Carscallen Blog

Federal Anti-Harassment Legislation Coming January 1, 2021

Posted by Carscallen LLP on Nov 25, 2020 3:29:16 PM

Written by Suzanne M. Porteous and Michael A. Custer

New legislation targeting harassment and violence in the work place will come into force in the new year that will apply to federally-regulated employers in Canada. The federal government introduced Bill C-65, the Work Place Harassment and Violence Prevention Regulations[1] (the “Regulations”) this past summer with a stated goal of strengthening the federal framework to protect federal workers. The Regulations, together with related amendments to the Canada Labour Code[2] (“Code”) will come into effect on January 1, 2021.

The changes introduced by the Regulations will be incorporated into the Code, and will also change the definitions of violence and sexual harassment in the Code to be consistent with the Regulations. The definition of harassment and violence under the Regulations is “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.”

Federally-regulated employers in Canada include:

 

  • The federally regulated private sector (this includes: air transportation; banks; grain elevators, feed and seed mills, feed warehouses and grain-seed cleaning plants; First Nations Band Councils; most federal Crown corporations; port services, marine shipping, ferries, tunnels, canals, bridges and pipelines that cross international or provincial borders; radio and television broadcasting; railways that cross provincial or international borders and some short-line railways; road transportation services that cross provincial or international borders; telecommunications; uranium mining and processing and atomic energy; and any business that is vital, essential or integral to the operation of one of the above activities).
  • The federally regulated public sector (including the federal public service and Parliament).
  • Private-sector firms and municipalities in Yukon, the Northwest Territories and Nunavut.

The Regulations introduce new requirements for federally-regulated employers to identify, prevent and address work place harassment and violence. Bill C-65 is the result of extensive consultation between the government and both employee and employer groups, and will address many of the inadequacies identified through this consultation. Bill C-65 will result in changes to Part II of the Code as it relates to harassment and violence prevention. For example, Bill C-65 extends employers’ obligations relating to former employees in an occurrence of harassment and violence in the work place if the occurrence becomes known to the employer within three months after the day on which the former employee ceases to be employed by the employer.

There are several parts to the requirements being introduced by the Regulations, which we will discuss below.

Work Place Assessment and Identification of Risk Factors

Federally-regulated employers will be required to conduct a work place assessment[3] and identification of internal and external risk factors that contribute to harassment and violence in the work place.[4] Risk factors must be identified having regard to:

 

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

Development and Implementation of Preventative Measures

Within six months of identifying risk factors, federally-regulated employers must also develop and implement preventative measures to: (1) mitigate harassment and violence in the work place and (2) neither create nor increase the risk of harassment and violence in the work place.[5] This includes the creation of an implementation plan for the preventative measures.[6] 

Development and Implementation of Harassment and Violence Prevention Policy

All federally-regulated employers will be required to develop and implement a work place harassment and violence prevention policy (“Policy”).[7] The Policy must contain the following elements:[8]

 

  • a mission statement regarding the prevention of and protection against harassment and violence in the work place;
  • a description of the roles of the employer, designated recipient, employees, policy committee, work place committee and health and safety representative (as applicable) in relation to harassment and violence in the work place;
  • a description of the risk factors, internal and external to the work place, that contribute to work place harassment and violence;
  • a summary of the training that will be provided regarding work place harassment and violence;
  • a summary of the resolution process, including (1) the name or identity of the designated recipient, and (2) how a principal party or witness may provide the employer or the designated recipient with notice of an occurrence;
  • the reasons why a review and update of the work place assessment would be conducted;
  • a summary of the emergency procedures that must be implemented when an occurrence poses an immediate danger to the health and safety of an employee or when there is a threat of such an occurrence;
  • a description of how the employer will protect the privacy of persons who are involved in an occurrence or in the resolution process for an occurrence under the Regulations;
  • a description of any recourse, in addition to any under the Code or the Regulations, that may be available to persons who are involved in an occurrence;
  • a description of the support measures that are available to employees; and
  • the name of the person designated to receive a complaint made under subsection 127.1(1) of the Code (relating to an employer’s internal complaint resolution process).

Emergency Procedures

Federally-regulated employers will also be required to develop and implement emergency procedures for dealing with an occurrence, or the threat of an occurrence, that poses an immediate danger to the health and safety of an employee.[9]

Training and Support Measures

Employers must also develop and implement training on work place harassment and violence for all employees and the employer.[10]

The employer must also provide employees with information regarding support measures available to them.[11]

Resolution Process and Investigations

The Regulations also set out a thorough resolution process for when an employer receives notice of any occurrence of work place harassment or violence,[12] including content the notice must contain,[13] the employer’s response to the notice,[14] and when an employer is required to conduct an investigation.[15]

Importantly, confidentiality obligations are imposed on employers in all aspects of the process for reporting an occurrence of work place harassment or violence, and for the resolution/investigation process.[16]

 

Time frames 

The Regulations set out time frames for:

 

  • carrying out a work place assessment of risk factors;
  • developing and implementing a Policy;
  • providing training to employees and the employer;
  • reviewing and updating (as necessary) the Policy, emergency procedures, and training every three years;
  • making a complaint;
  • responding to a complaint, including appointing an investigator and providing status updates to the complainant; and
  • resolving any occurrence.

The employer’s resolution process must be completed within one year after the day an employer is provided with notice of an occurrence or work place harassment or violence.[17]

 

CARSCALLEN LLP'S EMPLOYMENT LAW EXPERTISE

Carscallen LLP’s Employment, Labour and Human Rights group has a wealth of experience assisting employers in developing and implementing work place policies, as well as in providing support and training for employees and employers in relation to harassment and violence complaints or occurrences. If you are a federally-regulated employer with questions on how these upcoming legislative changes will affect your work place, please contact us for more information. We also regularly work with provincially-regulated employers from a variety of industries on developing and implementing a range of work place policies, including work place violence and harassment policies, and we are adept at customizing such policies to meet your unique business needs and circumstances. Our Employment, Labour and Human Rights group has also represented employees in reporting and resolving reportable incidences (whether through formal proceedings and conciliation procedures or through negotiations that ultimately avoid formal proceedings.).

Whether you are an employee or an employer, Carscallen LLP’s experienced team of employment lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee. Our team of lawyers provide tailored, proactive advice to help successfully navigate every stage of the employment relationship. We have the legal expertise to help minimize problems and disputes before they happen, as well as the ability to resolve conflict quickly and constructively when it arises. Please contact any member of our Employment, Labour and Human Rights team with any questions you may have about developing and implementing work place policies, or any other personal or business employment-related issues.

 

 

*This update is intended for general information only on the subject matter and is not to be taken as legal advice.

 

[1] Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, online: http://gazette.gc.ca/rp-pr/p2/2020/2020-06-24/html/sor-dors130-eng.html [Regulations].

[2] Canada Labour Code, RSC 1985, c L-2.

[3] Regulations, s. 5(1).

[4] Regulations, s. 8.

[5] Regulations, s. 9.

[6] Regulations, s. 9(b).

[7] Regulations, s. 10(1).

[8] Regulations, s. 10(2).

[9] Regulations, s. 11.

[10] Regulations, s. 12.

[11] Regulations, s. 13.

[12] Regulations, ss. 14-24.

[13] Regulations, s. 16.

[14] Regulations, ss. 20-22.

[15] Regulations, ss. 25-30.

[16] Regulations, s. 10(2)(h): “the Policy must contain a description of the manner in which the employer will protect the privacy of persons who are involved in an occurrence or in the resolution process for an occurrence under these Regulations”; Regulations, s. 30(2).

[17] Regulations, s. 33(1).

 

 

 

Topics: Employment, Labour and Human Rights Law

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