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The Lowdown on Workplace Harassment & Violence Obligations

Over the past couple of weeks, I’ve received a few different calls and emails regarding employer obligations when it comes to Workplace Harassment policies and objectives. I am told by clients that they’re receiving calls from in person and online training vendors who are calling to secure a piece of business by advising employers of their obligations in this regard, telling them that its mandatory to fulfill these and that there are consequences if they don’t and asking employers to invest in a training module or two which are available for a fee of-course.

So what exactly is happening? Why the buzz? What do employers need to be aware of? In this blog, I’ll address three key questions from employers – “What’s this about?” “Do I need to do this?” “Can I do it myself? “

“What’s this about?”

You’ve probably read or heard about the #Metoo movement, and this is symptomatic of the greater issue that employers and the general public have faced for year but are only recently becoming more aware of. Since mid-2018, we’ve heard about stunning allegations of sexual harassment in the media, both in our country and in our neighbor down south. But the problem is deeper, a 2017 federal survey found the following:

  • 60% of women report having experienced harassment in the workplace
  • 41% stated that there was no attempt to resolve a reported incident. Further,
  • 72% of respondents said they did not report the harassment because of fears about being not believed or perceived as a troublemaker by the employer or retaliation by the harasser.

Recognizing this, the federal government developed a harassment and violence in the workplace strategy for the federal sector. The centre piece is Bill C-65, which received Royal Assent on October 25, 2018, but is not yet in force. The Government of Canada has stated that it intends to bring the Act into force within two years following Royal Assent. So Federally regulated employers will need to prepare for changes coming into effect in 2020.

“Do I need to do this?”

It’s important to note that the focus of the Report is limited to federally regulated workplaces. Only 10% of Canadian employees are regulated by federal legislation, with the remainder being subject to provincial employment standards. However, the federal government has said it hopes the change will force private sector employers to step up their game and take harassment more seriously.

Many of the suggestions contained in the Report are already found in Ontario’s Occupational Health and Safety Act, which places obligations on employers to create and follow policies and programs for addressing workplace violence and harassment. In fact Ontario Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), has been in effect since 2016.

A three-pronged approach is supported by both of the above laws:

  • Prevention of Incidents
    • actively take steps to prevent and protect against harassment and violence in the workplace; provide employees, including supervisors and managers;
    • mandatory training of employers and employees in the prevention of harassment and violence in the workplace;
    • make available to employees in printed and electronic form: (1) a copy of this Part of the Labour Relations Code; (2) a statement of the employer’s general policy about health and safety in the workplace; and (3) any other information related to health and safety prescribed or specified by the Minister.
  • A Robust and Fair Investigation Process
    • respond to events Immediately;
    • ensure that instances of harassment and violence are investigated, recorded, and reported;
    • ensure that the privacy of complainants and respondents involved in a workplace harassment or violence investigation is protected by prohibiting workplace committees, policy committees, and health and safety representatives from participating in those investigations, or receiving any information that is likely to reveal the identity of a person involved in an investigation;
  • Support for employees and employers involved in a complaint
    • Offer support to employees affected by harassment and violence in the workplace;
    • Have an (Employee Assistance Program (EAP) that can assist employees;
    • ensure employees are informed of their rights and obligations under this Part of the Labour Relations Code, OHSA and company policies.

“Can I do it Myself?”

Employers can also refer to the Govt. Of Ontario provided Code of Practice to Address Workplace Harassment Under Ontario’s Occupational Health and Safety Act and the H&S Guidelines Workplace Violence and Harassment to help meet your workplace harassment legal responsibilities under the previously stated acts and under the Occupational Health and Safety Act (OHSA).

The following MINIMUM approach can be used by all employers who seek to demonstrate best practices in this area. Employers should also be mindful to include provisions and references to harassment protections in their collective agreements.

  • Employers must implement and post a workplace violence policy in a conspicuous location in the workplace
  • Also employers must conduct risk assessment to determine risk of violence in the workplace and reassess as often as necessary.
  • Supervisors and employees must be provided workplace violence and anti-harassment training. This training must include information about recognizing workplace violence/harassment, safety procedures and prevention. Training should be repeated whenever there is a significant change to the workplace violence policy or if new circumstances arise.
  • Since 2016, employers have new obligations under Bill 132 – OHSA, with respect to the prevention, training, investigation and resolution of workplace harassment issues, particularly workplace sexual harassment. “Workplace sexual harassment” is now specifically defined in the OHSA.
  • The bill requires that employers, in consultation with the health and safety committee, develop and implement a specific written policy in the workplace, develop a workplace harassment program and provide adequate training and instruction on the policy and program.
  • The policy must be prepared by the employer, posted in a conspicuous place in the workplace and reviewed by the employer as often as necessary but at least annually;
  • The policy must define harassment and sexual harassment as they appear in OHSA
  • Must include statements about the employer’s commitment to addressing workplace harassment and that the policy applies to all workers and addresses all sources of harassment
  • Must state that reasonable management is not harassment.
  • State that the employer will investigate incidents/complaints of harassment and will not penalize or reprise against an employee who reports harassment or participates in an investigation.
  • Policy must also include measures and procedures for workers to report incidents /complaints of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • Must set out how incidents /complaints of harassment will be investigated and dealt with;
  • Must set out how information obtained about an incident /complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law; and
  • Set out that a worker who has allegedly experienced harassment and the alleged harasser, if he or she is a worker of the employer, will 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.

You could hire an external consultant to assist you in this effort internally for your organization OR you can make your own internal course via PowerPoint or other tools at your disposal OR you can purchase courses and packages online. There are various options available.

For more information, you can also visit the provincial Ministry of Labour webpage on the topic available at the following links:

https://www.labour.gov.on.ca/english/hs/topics/workplaceviolence.php

https://www.ontario.ca/page/code-practice-address-workplace-harassment