Josh Fineblit, Jason Hanson, , Allison Di Cesare
Aug 31, 2016
With the September 8 deadline for the new workplace harassment rules in Ontario’s Occupational Health and Safety Act (the OHSA) becoming law quickly approaching, now is the time for employers to conclude the revamping of their internal policies, programs and procedures, if they have not already done so.
As discussed in an earlier Osler blog post, there are several key new obligations. First, employers will be required to conduct investigations not only into complaints, but also “incidents” of workplace harassment. As such, employers now have a duty to investigate, even if there is no formal complaint from any worker. Second, both the alleged victim and the alleged harasser (if a worker) must be informed in writing of the results of the investigation and any “corrective action” that has been or will be taken as a result of the investigation. Third, and critically, Ministry of Labour inspectors will have the power to order the employer to retain an outside third-party investigator. While the OHSA is silent on this point, it appears that the inspector will have such power not only if the employer failed to investigate, but also if the inspector concludes that the investigation was not “appropriate in the circumstances.”
In order to help employers understand the new requirements, the Ministry of Labour recently released its Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act (the Code of Practice). The Code of Practice is non-binding, and failure to comply does not necessarily mean the employer is in breach of the workplace harassment provisions under the OHSA. However, it does shed light on how the Ministry has interpreted these amendments. Prudent employers should adhere to the Code of Practice to have greater certainty that they are meeting their obligations under the revised legislation. Failure to meet these obligations may result in (i) prosecutions of up to $500,000 per count, (ii) personal liability for officers and directors, and (iii) an order to retain an outside third-party investigator.
The Code of Practice is split into several parts, and discusses the following:
- the workplace harassment policy and program;
- investigation requirements; and
- training requirements (information and instruction).
Workplace harassment policy and program
Since 2010, the OHSA has required employers to develop and maintain a workplace harassment policy and a program to implement that policy. Under the new workplace harassment provisions, the program must be developed and reviewed annually in consultation with the employer’s joint health and safety committee or representative (if the workforce is too small to have a committee). In addition to the existing requirements, the program will need to contain the following components:
- Alternative reporting structures. Under the new OHSA amendments, the program must include procedures for reporting incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser. The Code of Practice goes one step further by suggesting that the person who receives the complaint should not be under the alleged harasser’s direct control. This could prove problematic for smaller workplaces, where it may be necessary for employers to provide an outside point of contact for their workers (e.g., a helpline or a member of the board of directors). The intent is for workers to be able to report workplace harassment to a person who will be able to objectively address the complaint.
- Procedures for investigating and dealing with an incident or complaint. Employers must ensure that an investigation is conducted into incidents and complaints of workplace harassment that is “appropriate in the circumstances.” We discuss this requirement under “Investigation requirements,” below.
- Procedures for disclosing (and not disclosing) information. The workplace harassment program must explain how information obtained about an incident or complaint (including identifying information about any individuals involved) will remain confidential, unless disclosure is necessary for the purpose of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law. However, the amendments to the OHSA also require workplace harassment programs to set out how the alleged victim and the alleged harasser will be informed of the results of the investigation and any corrective action taken. Unfortunately, neither the OHSA nor the Code of Practice provide guidance to employers on how to balance these competing confidentiality and disclosure obligations. The Code of Practice suggests that the amount of information provided about the corrective action will depend on the circumstances but must indicate what steps the employer has taken or will take to prevent a similar incident of workplace harassment, if workplace harassment was found.
Although not specifically required under the OHSA, the Code of Practice also recommends that the workplace harassment program indicate how the employer will maintain records of all incidents and complaints of workplace harassment.
Under the amendments to the OHSA, the duty to investigate will be triggered by “incidents” of workplace harassment, even if there is no complaint. The Code of Practice suggests that the obligation arises whenever a supervisor becomes aware of an incident, even if the supervisor fails to pass that information on to the employer. Therefore, employers should train their supervisors and managers on the importance of reporting workplace harassment whenever they become aware of it.
The amendments require employers to ensure that investigations are “appropriate in the circumstances.” The Code of Practice elaborates on this and sets out the following minimum requirements for a workplace harassment investigation:
- The investigator must not be directly involved in the incident or complaint and must not be under the direct control of the alleged harasser.
- The investigator should have knowledge of how to conduct an investigation that is appropriate in the circumstances.
- Investigations should be completed within 90 calendar days, unless there are extenuating circumstances.
- The investigator must remind the worker who allegedly experienced workplace harassment, the alleged harasser(s) and any witnesses of their confidentiality obligations and protections.
- The investigator must make reasonable efforts to interview all parties involved (including witnesses), even if they are not workers, and must give the alleged harasser the opportunity to respond to the specific allegations raised against him or her.
- The parties to the complaint should be updated periodically on the status of the investigation.
- The investigator must collect and review any relevant documents, and take appropriate notes and statements during interviews.
- The investigator must prepare a written report containing the allegations, response, evidence, findings of fact and a conclusion about whether or not workplace harassment was found. This report must be provided to the employer, supervisor or designated person to take appropriate action.
The results of the investigation and any corrective action must be communicated in writing to the alleged victim and the alleged harasser, if they are a worker of the employer, within 10 days of the conclusion of the investigation. There is no requirement for the investigation report itself to be shared with such persons.
As discussed above, ensuring that internal investigation procedures comply with the recommendations in the Code of Practice is an important risk management tool, and will help minimize the risk of a Ministry inspector ordering a third-party investigation (at the employer’s expense).
Training requirements (information and instruction)
The OHSA requires employers to provide workers with information and instruction regarding the contents of their workplace harassment policy and program. Under the OHSA, the term “worker” is broader than simply employees, and includes persons such as temporary workers, students, trainees and any “person who performs work or supplies services for monetary compensation.” The Code of Practice recommends that workers receive instruction on what conduct is considered workplace harassment, how to recognize and report it, and how the employer will deal with it. Supervisors and managers should receive additional instruction on how to recognize and handle incidents of workplace harassment. Further, anyone who may be conducting a workplace harassment investigation should be provided with specific training on how to conduct an investigation that is “appropriate in the circumstances” and otherwise meet the requirements of the new workplace harassment provisions in the OHSA.