New Federal Workplace Harassment and Violence Prevention Regime to Take Effect January 1, 2021

Introduction

On June 24, 2020, the federal government announced a new regime to help ensure that federally regulated workplaces are free from harassment and violence. The new regime will come into force on January 1, 2021, and will include changes to Part II of the Canada Labour Code (the “Code”) by Bill C-65, An Act to amend the Canada Labour Code (harassment and violence) (the “Act”) (which received Royal Assent on October 25, 2018), as well as the federal government’s Workplace Harassment and Violence Prevention Regulations (the “Regulations”). The Regulations replace Part XX of the Canada Occupational Health and Safety Regulations, some sections of the Canada Labour Standards Regulations, and several occupational health and safety regulations in the maritime, aviation, oil and gas, and rail sectors.

These changes will apply to all federal workplaces covered under Part II of the Code including federally regulated private sector workplaces, the federal public service, and parliamentary workplaces, and will modify the existing Code framework with respect to preventing workplace harassment and violence.

Effective January 1, 2021, Code provisions relating to workplace violence, harassment, and sexual harassment will be consolidated and broadened in Part II of the Code. Notably, the definition of workplace “violence and harassment” will be expanded to include “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.”

An overview of key regulatory requirements arising under the new regime is set out below.

Policies and Procedures, Assessments, and Investigations:

  • Employers and their applicable partner (meaning their policy health and safety committee, workplace health and safety committee, or health and safety representative, as applicable) will be required to jointly develop a workplace harassment and violence prevention policy. The policy must be made available to all employees, and must be jointly reviewed and updated if necessary at least once every three years.
  • Employers and their applicable partner must jointly develop emergency procedures to be implemented if an occurrence of harassment and violence in the workplace poses an immediate danger to an employee or where there is a threat of such an occurrence. 
  • Employers and their applicable partner must jointly carry out a workplace assessment consisting of the identification of risk factors that may contribute to harassment and violence in the workplace. Within six months of identifying the risk factors, employers and their applicable partner must develop and implement preventive measures targeting those factors.  This assessment must be jointly reviewed and updated if necessary at least once every three years.
  • Employers must investigate, record, and report all occurrences of workplace harassment and violence to the Minister of Labour on or before March 1 of each year in an annual report.  
  • There are new procedural requirements and timelines for investigating and resolving occurrences of workplace harassment and violence, including requirements to designate a recipient to whom notice of an occurrence may be given, select a qualified investigator, and provide notice of an investigation and monthly updates regarding the status of the resolution process to the affected parties.

Training:

  • Employers and their applicable partner must jointly develop or identify training on workplace harassment and violence to be provided to everyone in the workplace, including the employer. The training must be specific to the culture, conditions, and activities of the workplace and include certain prescribed elements.
  • The training must be completed by January 1, 2022 and at least once every three years after that.
  • The training must be jointly reviewed and updated if necessary at least once every three years.
  • Every new employee must receive the above training within three months of their start date, and at least once every three years after that.  Employees must also undergo the training following any updates to the training or their assignment to a new activity or role for which there is an increased or specific risk of workplace harassment and violence.

Support:

  • Employers must provide employees with information regarding the medical, psychological, or other support services available within their geographical area. 
  • Descriptions of these support measures must be available in the employer’s workplace harassment and violence prevention policy.

Privacy:

  • In their workplace harassment and violence prevention policy, employers must describe how they will protect the privacy of persons involved in an occurrence of harassment and violence in the workplace, or in the resolution process for an occurrence. 
  • An investigator’s report regarding an occurrence of workplace violence and harassment must not reveal the identity of persons involved in the occurrence or the resolution process for the occurrence. 

Record Keeping:

  • Employers must keep certain records, including their workplace harassment and violence prevention policy, copies of the documents that form part of their workplace harassment and violence assessment and subsequent reviews of the assessment, investigation reports, and each annual report provided to the Minister for a period of 10 years.

Conclusion 

Federally regulated employers are recommended to review and update their workplace harassment and violence policies, procedures, training protocols, and record keeping practices to ensure compliance with the new obligations.  

For further information or advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.

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Rae Christen Jeffries LLP