THE EMPLOYERS' EDGE
New Federal Workplace Harassment Prevention Regulations Published
On June 24, 2020 the Federal Government published the final version of the Bill C-65 Workplace Harassment and Violence Prevention Regulations under the Canada Labour Code to assist in the prevention of harassment and violence in federally-regulated workplaces. These Regulations will come into effect on January 1, 2021 allowing federal employers 6 months to implement the required changes to their policies.
Under Bill C-65 harassment is defined 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.” Federally regulated employers must do 5 things to ensure that the requirements of the Regulation are met:
1. Develop a workplace Harassment and Violence Prevention Policy
The workplace harassment policy must be developed with an “applicable partner”. The employer and the applicable partner must jointly review, and if necessary update the policy at least once every three years or following any changes to an element of the policy. Who an employer relies on as an applicable partner depends on the size of each employer’s organization set out below:
- 0-19 Employees: the applicable partner is a health and safety representative;
- 20-299 Employees: the applicable partner is a workplace committee; or
- 299+ Employees: the applicable partner is the policy committee.
The employer must make this policy available to all employees and it must include the following elements:
- the employer’s mission statement regarding the prevention of and protection against harassment and violence in the work place;
- a description of the respective roles of the employer, designated recipient, employees, policy committee, work place committee and health and safety representative 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
- the name or identity of the designated recipient, and
- the manner in which a principal party or witness may provide the employer or the designated recipient with notice of an occurrence;
- the reasons for which a review and update of the work place assessment must 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 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;
- a description of any recourse, in addition to any under the Act or these 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 who is designated to receive a complaint made.
2. Conduct a workplace assessment to identify harassment and violence risk
An employer and the applicable partner must jointly carry out a work place assessment that must be reviewed every three years and include the identification of the following internal and external risk factors:
- 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.
The accuracy of the assessment must be monitored with the applicable partner and updated if necessary in order to reflect a change to the information set out in the assessment of the risk factors listed above or a change that compromises the effectiveness of a preventative measure.
The preventative measures must be implemented within six months after the risk factors are identified and must be developed jointly with the applicable partner. The preventative measures must:
- mitigate the risk of harassment and violence in the work place;
- ·neither create nor increase the risk of harassment and violence in the work place;
- develop an implementation plan for the preventive measures; and
- Implement the preventive measures in accordance with the implementation plan.
3. Undergo mandatory workplace harassment and violence training.
The training must be developed with the applicable partner and it is to be provided to the employees, the employer and the designated recipient. The designated recipient is a work unit in a work place or person that is designated by the employer to whom a notice of harassment and violence in the work place may be provided. The training must be specific to the culture, conditions and activities of the work place and include the following elements:
- the elements of the work place harassment and violence prevention policy;
- a description of the relationship between work place harassment and violence and the prohibited grounds of discrimination set out in subsection 3(1) of the Canadian Human Rights Act which are: race, nationality, ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an office for which a pardon has been granted or in respect of which a record suspension has been ordered; and
- a description of how to recognize, minimize, prevent and respond to workplace harassment and violence.
The employer must undergo the training within one year after the day on which these Regulations come into force and at least once every three years following. The employer must ensure that the designated recipient is provided with the training before assuming their duties under these Regulations and must go through training again at least once every three years.
The employee must be provided with training:
- within three months after the day on which their employment begins or, in the case of an employee whose employment began before the day on which these Regulations come into force, within one year after the day on which these Regulations come into force;
- at least once every three years after that; and
- following any update to the training or their assignment to a new activity or role for which there is an increased or specific risk of work place harassment and violence.
At least once every three years the employer and applicable partner must jointly review and update the training.
4. Employers must implement the resolution process as set out in the Regulations for any workplace harassment and violence complaints. The resolution process has 5 elements:
As mentioned above an employer must designate a person or work unit as the designated recipient that all notifications of harassment and violence will be provided to. The notice may be given by the principle party or witness either directly or anonymously and can be made in writing or given orally but it must contain the name of the principle party and responding party (if known), the date of the occurrence and a detailed description of the occurrence. Within 7 days of notice the recipient must contact the individual who is the object of the occurrence to inform them:
- that their notice of an occurrence has been received and/or they have been identified as the principal party in notice provided by a witness;
- the manner in which the work place harassment and violence prevention policy is accessed;
- of each step of the resolution process; and
- that they may be represented during the resolution process.
The same information must be given to the responding party when they are contacted to discuss the occurrence.
Following the notice, employers must provide information of support services, such as mental health services that the employees can access if needed. The principle and responding parties must also be provided with monthly updates on the status of the process.
Parties must make every reasonable effort to resolve an occurrence no later than 45 days after the day on which notice was provided. However, if the occurrence is being investigated it cannot be resolved until after the investigator has provided their report. The negotiated resolution phase is also a screening mechanism as the parties will review the notice and determine if the occurrence describes an action, or course of conduct that constitutes harassment or violence as defined by the Regulation. If the issue cannot be resolved, the principal party may choose to proceed with the resolution process by way of conciliation.
The parties may attempt to resolve an occurrence by conciliation if they both agree to do so and are also able to agree on a person to facilitate the conciliation. However, similar to the negotiated resolution phase, if the occurrence is being investigated then it cannot be resolved by conciliation until after the investigation report has been provided. If an occurrence is resolved and an investigation was already initiated then the investigation must be discontinued.
An investigation must be carried out if requested by the principle party and a notice must be provided to the parties that the investigation is to be carried out. An employer or designated recipient must select one of the following as an investigator:
- in the case where the employer and the applicable partner have jointly developed or identified a list of persons who may act as an investigator, a person from that list.
- In any other case the investigator must be a person that is agreed to by the employer or designated recipient, the principal party and the responding party.
If there is no agreement on who is to be the investigator within 60 days after the day on which the notice is provided a person from among those whom the Canadian Centre for Occupational Health and Safety identifies as having the knowledge, training and experience will be the investigator.
Any person chosen to be an investigator must provide the parties with a written statement indicating that person is not in conflict and must:
- be trained in investigative techniques;
- have knowledge, training and experience that are relevant to harassment and violence in the work place; and
- have knowledge of the Act, the Canadian Human Rights Act and any other legislation that is relevant to harassment and violence in the work place.
Once the investigation is completed the investigator will be required to provide parties with a final report setting out a detailed description of the occurrence, their conclusions and their recommendations to eliminate or minimize the risk of a similar occurrence. The employer must then implement all recommendations.
Completion of Process
The entire resolution process must be completed within 1 year of the day the notification was received. The resolution process is considered to be completed in the following situations:
- Early resolution or conciliation is successful.
- The principal party and the employer or designated recipient review the notice of occurrence and determine that the notice of occurrence does not describe an action, conduct or comment that constitutes harassment and violence.
- The principal party chooses to end the process after an employer and applicable partner jointly review and update the workplace assessment where a negotiated solution is unsuccessful. This is only applicable where the responding party is not an employee or employer.
- where an investigation was conducted:
- the investigator has provided the final report; and
- the employer has implemented the recommendations jointly agreed upon with the applicable partner.
5. Record-keeping protocols must be in place for complaints under the Regulation.
An employer must keep the records of the complaints for a period of 10 years. The following health and safety records must be kept:
- the work place harassment and violence prevention policy;
- a copy of the documents that form part of the work place assessment;
- a copy of the documents that form part of each review and update of the work place assessment;
- for each instance where the employer and the policy committee, the work place committee or the health and safety representative are unable to agree on a matter that is required by these Regulations to be jointly done by them, a record of the employer’s decision in that matter and the reasons for that decision;
- a record of each notice of occurrence provided and of each action taken in response to the notice;
- for each instance where a time limit is not met, a document that sets out the reason for the delay;
- a copy of each report that is prepared by an investigator;
- a copy of each annual report; and
- a copy of each fatality report.
Additionally, before March 1st of each year the employer must provide the minister with a report that includes the following information:
- the total number of occurrences that were completed by early resolution or conciliation;
- the number of occurrences that were related to sexual harassment and violence, as well as non-sexual harassment and violence;
- the number of occurrences that resulted in the death of an employee;
- the locations where the occurrences took place, specifying the total number of occurrences that took place in each workplace location;
- if known, the number of occurrences that fell under each prohibited ground of discrimination set out in the Canadian Human Rights Act;
- the types of workplace relationships that existed between the principal and responding parties, specifying the total number for each relationship type; and
- the average time, expressed in months, that it took to complete the resolution process for an occurrence.
This Regulation includes some significant changes to the earlier draft version that was circulated for comment on April 27, 2019. Federally-regulated employers are encouraged to undertake a review of their current policies to ensure compliance with the new Regulation. If you are a federally-regulated employer and need help navigating the Regulation to update your Workplace Harassment and Violence plan, the team at CCPartners can help ensure you to take the right approach.
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