Williams HR Law LLP

New Regulations on Workplace Harassment and Violence for Federally Regulated Employers Released

July 16, 2020

The federal government released new regulations under the Canada Labour Code (“CLC”) on June 24, 2020 that will create substantial new obligations for federally regulated employers in respect of workplace harassment and violence, effective January 1, 2021.

These regulations, known as the Workplace Harassment and Violence Prevention Regulations (“the Regulations”), are aimed at addressing violence and harassment and preventing physical and psychological injuries in federally regulated workplaces. The Regulations were passed under Bill C-65, which amended various statutes including the CLC.

The Regulations will, among other things, require federally regulated employers to investigate incidents and complaints of workplace harassment and violence (including sexual harassment and violence), provide employees with training on harassment and violence, and maintain related policies. As discussed in our earlier article, the federal government developed the framework for the Regulations through public consultation that began in 2018.

The term “harassment”, which is not defined in the CLC, is defined in the Regulations 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.”

The new Regulations cover prevention and protection measures and policies, training, support measures, the resolution process, and reporting. The Regulations require an employer to jointly develop a workplace harassment and violence prevention policy in collaboration with the policy committee, workplace committee or health and safety representative, as applicable. The policy must include:

  • the employer’s mission statement regarding the prevention of and protection against harassment and violence in the workplace;
  • a summary of the complaint resolution process, including the name of a designated individual to whom occurrences and complaints can be reported (“designated recipient”), and the manner in which a party or witness may provide the employer or the designated recipient with notice of an occurrence;
  • a description of the roles of the employer, designated recipient, employees, and applicable committee/representative in relation to harassment and violence in the workplace;
  • the risk factors, both internal and external to the workplace, that contribute to workplace harassment and violence;
  • that training on the prevention of harassment and violence will be provided;
  • a summary of the emergency procedures to 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;
  • information on the protection of confidentiality of all parties involved throughout the investigation, including witnesses;
  • information on other recourse available to persons involved in an occurrence of workplace harassment or violence, in addition to what is provided for under the CLC or the Regulations; and
  • support available for employees who have experienced workplace harassment and violence.

The Regulations will also require federally regulated employers to conduct workplace assessments at least every three years to identify risk factors for violence and harassment in their workplaces jointly with their policy committee, workplace committee, or health and safety representative, as applicable.

The Regulations further lay out requirements for the resolution process, including:

  • procedures for providing and responding to a notice of an occurrence;
  • the process for resolving an occurrence, including when an investigation is required; and
  • an employer’s obligation to implement corrective measures in response to an investigation report.

The Regulations also lay out qualifications for a person to be considered competent to act as an investigator, which include being trained in investigative techniques, having knowledge, training and experience relevant to workplace harassment and violence, and having knowledge of Part II of the CLC, the Canadian Human Rights Act, and other relevant legislation. The resolution process must generally be completed within one year after notice of an occurrence is provided, and monthly updates on the status of the resolution process must be provided to the parties.

The Regulations also detail federally regulated employers’ health and safety record keeping obligations, and requirements for annual reporting to the Minister of Labour on workplace harassment and violence incidents.

Notably, pursuant to related amendments to the CLC under Bill C-65, complaints of violence and harassment in federally regulated workplaces which are not resolved between an employee and supervisor must be referred directly to the Minister of Labour, rather than to a workplace committee, for investigation and resolution.

Overall, the new obligations for federally regulated employers under the Regulations will be largely similar to the existing obligations of provincially regulated employers under Ontario’s Occupational Health and Safety Act with regard to preventing and addressing harassment and violence in their workplaces, as well as similar legislation in other Canadian jurisdictions.

How Should Employers Prepare for these New Rules?

Although the Regulations will not come into effect until January 1, 2021, federally regulated employers should begin apprising themselves of the new obligations and planning to implement policies and training that will fulfill their statutory obligations, if they have not already done so. In particular, federally regulated employers should conduct a joint risk assessment sooner rather than later to identify any hazards and/or risk factors for violence or harassment that are specific to their workplace, so that they can be adequately addressed in the policies and training that they develop to comply with the Regulations. Doing so will help federally regulated employers minimize their liability in respect of workplace harassment and violence and help protect the safety and wellbeing of their employees.

This blog is provided as an information service and summary of workplace legal issues.  This information is not intended as legal advice.