Part 1 of 2: Less than 6 months for employers to prepare for the new federal regulations on workplace harassment and violence – changes effective January 1, 2021

The federal government has now published its Workplace Harassment and Violence Prevention Regulations (the “Regulations”), which will come into force on January 1, 2021 along with Bill C-65, the federal anti-harassment and violence legislation.

The Regulations impose new legal obligations on federally regulated employers and modify the existing framework of the Canada Labour Code (the “Code”) for the prevention of workplace harassment and violence. The Regulations require that federally regulated employers implement measures to prevent workplace harassment and violence from occurring and the procedures that must be in place to respond to occurrences of workplace harassment and violence. Federally regulated employers are those employers covered by the Code, such as private sector employers engaged in a federal work or undertakings (such as air transportation, telecommunications and banking), federal Crown corporations (such as Canada Post) and those in the federally regulated public sector.

In this article, the first of a two-part series on the Regulations, we outline some of the key requirements of the Regulations that must be implemented when the Regulations come into force.

Prevention of workplace harassment and violence

Concept of “applicable partner”

The Regulations introduce the concept of an “applicable partner”, which is the employer’s policy health and safety committee or, if no such committee exists, the workplace health and safety committee or health and safety representative, as applicable.

Assessment of risk factors and developing preventive measures

The Regulations require that the employer, jointly with its applicable partner, take steps to prevent workplace harassment and violence by:

  • identifying risk factors, internal and external to the workplace, that contribute to workplace harassment and violence, taking into account the criteria expressly specified in the Regulations; and
  • within six months, developing preventive measures for mitigating the identified risk factors and developing and executing a plan for implementing such preventive measures.

Employers must review and, if necessary, update their implementation plan every three years.

Workplace harassment and violence prevention policy

The Regulations require that the employer and its applicable partner develop a workplace harassment and violence prevention policy that is available to all employees and contains the following elements:

  • the employer’s mission statement regarding the prevention of workplace harassment and violence;
  • a description of the respective roles of the employer, the name of the individual or work unit designated by the employer to whom a notice of harassment or violence may be provided (the “designated recipient”), employees, policy committee, work place committee and health safety representative, in each case in relation to harassment and violence in the workplace;
  • a description of the risk factors, internal and external to the workplace, that contribute to workplace harassment and violence;
  • a summary of the workplace harassment and violence training  that will provided;
  • a summary of the employer’s resolution process, including identifying the designated recipient and the  manner in which notice to the designated recipient may be provided;
  • the reasons for which a review and update of the workplace assessment must be conducted;
  • a summary of the emergency procedures that must be implemented when an occurrence poses an immediate danger or threat to the health and safety of an employee;
  • a description of the manner in which the employer will protect the privacy of persons who are involved in an occurrence of workplace harassment or violence or in the resolution of it;
  • a description of any recourse that may be available in addition to any set out under the Code and the Regulations. The Regulations do not specify what “recourse” must be described, however, during the public comment phase of the Regulations, it was clarified that the intent of this requirement is for the employer to list all the avenues that an employee may take in addressing workplace harassment or violence (e.g., the Canadian Human Rights Act (the “CHRA”), the Criminal Code or  a grievance procedure); and
  • a description of the support measures available to employees.

The employer and their applicable partner must jointly review and, if necessary, update the workplace harassment and violence prevention policy at least once every three years and following any change to an element of the policy. If the employer and their applicable partner are unable to agree on any matter that is required by these Regulations to be done jointly by them, the employer’s decision prevails.

Looking ahead: preparing for the new federal regulations coming into force

With the new Regulations, federally regulated employers will have to become familiar with and implement a whole new regime for addressing risks related to workplace harassment and violence. While these new rules create new burdens for some employers, the Regulations also provide more detailed – and, some would argue, helpful – guidance for federally regulated employers on what exactly is expected of them in addressing workplace harassment and violence as well as concerns in their workplaces. Provincially-regulated employers have not had the benefit of this level of specificity to date.

In taking advantage of the level of specificity mandated by the Regulations and to better prepare for when the Regulations come into force, employers could consider (in consultation with their applicable partner, where necessary):

  • establishing a health and safety committee or a policy health and safety committee or designating a health and safety representative, as appropriate for the size of their organization, to ensure they have adequate support in the form of an applicable partner;
  • beginning the process of  identifying risk factors, developing measures for mitigating such risks and developing and executing a plan for implementing such preventive measures;
  • developing a workplace harassment and violence prevention policy that includes all the elements that are specified in the Regulations;
  • developing emergency procedures that are to be implemented if an occurrence of workplace harassment or violence poses a risk of threat of immediate danger to the health and safety of an employee;
  • developing an appropriate training program and training employees, within the time frames set out in the Regulations, on the elements of the workplace harassment and violence prevention policy, the relationship between workplace harassment and violence and discrimination under the CHRA and how to recognize, minimize, prevent and respond to workplace harassment and violence; and
  • compiling a list of regional support services for dealing with violence and harassment and making it available to all employees.

For more detailed and personalized advice on implementing these changes, employers should seek guidance from the Osler Employment and Labour Group in updating their processes and policies to ensure compliance with Bill C-65 and the Regulations. In part two of this series, we will outline the other requirements of the Regulations, including those relating to reporting and investigating workplace harassment and violence.

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Editors

Lawrence E. Ritchie

Partner, Litigation

Alexander Cobb

Partner, Litigation

Shawn Irving

Partner, Litigation

Kevin O’Brien

Partner, Litigation

Lauren Tomasich

Partner, Litigation

Malcolm Aboud

Associate, Litigation