Canada: New Work Place Harassment and Violence Prevention Regulations for Federally-Regulated Work Places Come into Force January 1, 2021

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On June 24, 2020, the federal government published Work Place Harassment and Violence Regulations (Regulations), which set out the requirements that federally-regulated employers will be required to meet in order to satisfy their obligations under the Canada Labour Code (CLC) to investigate, record, report, prevent and provide training with respect to work place harassment and violence, including sexual harassment and sexual violence.  The Regulations support Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 (Bill 65), which received Royal Assent on October 25, 2018. 

On June 22, 2020, the federal government announced that both Bill C-65 and the Regulation will come into force on January 1, 2021.  The government had previously announced that Bill C-65 would come into force in 2020.    

We described the work place violence and harassment obligations contained in Bill C-65 here.   

The Regulations require employers to take certain steps jointly with their policy committee or their work place committee or their health and safety representative; however, if they cannot jointly agree on a required step, the employer’s decision will prevail.

The Regulations require employers to take the prevention and protection measures set out in detail below.

Defined Terms

The Regulations definitions include the following terms:

  • Designated recipient: a work unit in a work place or person that is designated by the employer under section 14;
  • Occurrence: an occurrence of harassment and violence in the work place;
  • Principal party: an employee or employer who is the object of an occurrence;
  • Responding party: the person alleged to have been responsible for the occurrence in a notice of an occurrence; and
  • Witness: a person who witnessed an occurrence or is informed of an occurrence by the principal party or responding party.

Furthermore, the Regulations indicate that the “applicable partner” refers to the policy committee or, if there is no policy committee, to the work place committee or the health and safety representative.

Work Place Assessment

Together with the applicable partner, the employer must jointly carry out a work place assessment that consists of the identification of risk factors and the development and implementation of preventive measures.

The risk factors that must be identified are those, internal and external to the work place, that contribute to harassment and violence in the work place, taking into account:

(a) The culture, conditions, activities and organizational structure of the work place;

(b) Circumstances external to the work place, such as family violence, that could give rise to harassment and violence in the work place;

(c) Any reports, records and data that are related to harassment and violence in the work place;

(d) The physical design of the work place; and

(e) The measures that are in place to protect psychological health and safety in the work place.

Within six months after identifying the risk factors, the employer and the applicable partner must jointly:

(a) Develop preventive measures that, to the extent feasible,

(i) Mitigate the risk of harassment and violence in the work place, and

(ii) Neither create nor increase the risk of harassment and violence in the work place;

(b) Develop an implementation plan for the preventive measures; and

(c) Implement the preventive measures in accordance with the implementation plan.

The employer must ensure that individuals it directs to identify the risk factors, or develop and implement the preventive measures, are qualified to do so by virtue of their training, education or experience.

The Regulations describe various circumstances in which the employer and the applicable partner must jointly monitor the accuracy of the work place assessment and jointly review it, and, if necessary, update it.

Work Place Harassment and Violence Prevention Policy

The Regulations require the employer and the applicable partner to jointly develop a work place harassment and violence prevention policy.  This policy must contain the following elements:

(a) The employer’s mission statement regarding the prevention of and protection against harassment and violence in the work place;

(b) 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;

(c) A description of the risk factors, internal and external to the work place, that contribute to work place harassment and violence;

(d) A summary of the training that will be provided regarding work place harassment and violence;

(e) A summary of the resolution process, including

(i) The name or identity of the designated recipient, and

(ii) The manner in which a principal party or witness may provide the employer or the designated recipient with notice of an occurrence;

(f) The reasons why a review and update of the work place assessment must be conducted;

(g) 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;

(h) A description of the manner in which the employer will protect the privacy of persons involved in an occurrence or in the resolution process for an occurrence;

(i) A description of any recourse that may be available to people involved in an occurrence;

(j) A description of the support measures available to employees; and

(k) The name of the person designated to receive a complaint made under subsection 127.1(1) of the CLC (i.e., made pursuant to the CLC’s internal complaint process)

The employer must make the policy available to all employees.  In addition, the employer and the applicable partner must jointly review and, if necessary, update the policy at least once every three years, and following any change to an element of the policy. 

Emergency Procedures

The Regulations require the employer and the applicable partner to jointly develop emergency procedures to be implemented if:

(a) An occurrence poses an immediate danger to the health and safety of an employee; or

(b) There is a threat of an occurrence referred to above.

The employer must make the emergency procedures available to all employees, and after every implementation of the emergency procedures, the employer and the applicable partner must jointly review them and, if necessary, update them.

Training

The employer and the applicable partner must jointly develop or identify the training on work place harassment and violence that is to be provided to employees, the employer and the designated recipient.

The training must be specific to the culture, conditions and activities of the work place and include the following:

(a) The elements of the work place harassment and violence prevention policy;

(b) 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 (CHRA); and

(c) A description of how to recognize, minimize, prevent and respond to work place harassment and violence.

The employer and the applicable partner must jointly review and, if necessary, update the training at least once every three years and following any change to an element of the training.

The employer must ensure that an employee is provided with the training:

(a) 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 the Regulations come into force, within one year after the day on which the Regulations come into force;

(b) At least once every three years after that; and

(c) 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.

The employer must ensure that the designated recipient is provided with the training before assuming their duties under the Regulations and at least once every three years after that.

The employer must undergo the training within one year after the day on which the Regulations come into force and at least once every three years after that.

Support Measures

The employer must make available to employees information about the medical, psychological or other support services available within their geographical area.

Resolution Process

The employer must designate a person or work unit as the designated recipient to whom notice of an occurrence may be provided.  A principal party or witness may, in writing or orally, provide the employer or the designated recipient with notice of an occurrence.  Such a notice is not required to be provided regarding an occurrence if:

(a) The responding party is neither the employer, nor an employee;

(b) Exposure to harassment and violence is a normal condition of the principal party’s work; and

(c) The employer has measures in place to address that work place harassment and violence.

If the principal party or the responding party is the employer, the notice must be provided to the designated recipient.

A witness may provide notice of an occurrence anonymously.

A notice of an occurrence must contain the following information:

(a) The name of the principal party and the responding party, if known;

(b) The date of the occurrence; and

(c) A detailed description of the occurrence.

The principal party may end the resolution process at any time by informing the employer or designated recipient that they choose not to continue with the process.

The employer or designated recipient must conduct an initial review of every notice of an occurrence.

Following the initial review, the occurrence is deemed to be resolved if the notice does not contain the name of the principal party or otherwise allow their identity to be determined.

Within seven days after the day on which notice of an occurrence is provided, the employer or designated recipient must contact the principal party to inform them:

(a) That their notice has been received or that they have been named or identified as the principal party in a notice provided by a witness, as the case may be;

(b) Of the manner in which the work place harassment and violence prevention policy is accessed;

(c) Of each step of the resolution process; and

(d) That they may be represented during the resolution process.

If notice of an occurrence is provided by a witness who is not anonymous, the employer or designated recipient must contact the witness to confirm that notice was received within seven days after the day the notice is provided.

On the first occasion that the employer or designated recipient contacts the responding party regarding the occurrence, they must inform them:

(a) That they have been named or identified as the responding party in the notice of an occurrence;

(b) Of the manner in which the work place harassment and violence prevention policy is accessed;

(c) Of each step of the resolution process; and

(d) That they may be represented during the resolution process.

Negotiated Resolution

The employer or designated recipient, the principal party and, if contacted, the responding party, must make every reasonable effort to resolve an occurrence for which notice is provided, beginning no later than 45 days after the day on which the notice is provided. If the occurrence is also investigated, however, it cannot be resolved in this manner after the investigator has provided their report.

The “reasonable effort” described above includes a review by the principal party and the employer or designated recipient to determine whether the notice of occurrence describes an action, conduct or comment that constitutes harassment and violence as defined in the CLC.

A “resolution of the occurrence” described above includes, but is not limited to, a joint determination by the principal party and the employer or designated recipient that the notice of occurrence does not describe an action, conduct or comment that constitutes harassment and violence as defined in the CLC

Conciliation

The principal party and the responding party may attempt to resolve an occurrence for which notice is provided by conciliation if they agree to conciliation and on a person to facilitate it. As with a negotiated resolution, if the occurrence is also investigated, it cannot be resolved by conciliation after the investigator has provided their report.

Investigation

If an occurrence is not resolved by a negotiated resolution or conciliation, an investigation of the occurrence must be carried out if the principal party requests it.  Consistent with the above, if the occurrence being investigated is resolved by a negotiated resolution or conciliation before the investigator has provided their report, the investigation must be discontinued.

An employer or the designated recipient must notify the principal party and the responding party that an investigation is to be carried out.

The employer or designated recipient must select one of the following persons to act as the investigator:

(a) 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; and

(b) In any other case,

(i) A person that is agreed to by the employer or designated recipient, the principal party and the responding party, or

(ii) If there is no agreement 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 required knowledge, training and experience.

The employer or designated recipient may select a person to act as the investigator only if the person:

(a) Possesses the required knowledge, training and experience; and

(b) Provides the employer or designated recipient, principal party and responding party with a written statement indicating that the person is not in a conflict of interest in respect of the occurrence.

For the purposes of the Regulations, an investigator must:

(a) Be trained in investigative techniques;

(b) Have knowledge, training and experience that are relevant to harassment and violence in the work place; and

(c) Have knowledge of the CLC, the CHRA, and any other legislation that is relevant to harassment and violence in the work place.

A person or party who proposes that a person act as the investigator must provide the other persons and parties with the following information about the proposed investigator:

(a) Their name;

(b) If they are an employee of the employer, their job title and the name of their immediate supervisor;

(c) A description of their knowledge, training and experience demonstrating that they meet the requirements for these qualities; and

(d) A description of any experience they have relevant to the nature of the occurrence to be investigated.

The employer or the designated recipient must provide the investigator with all information relevant to the investigation.

An investigator’s report regarding an occurrence must set out the following information:

(a) A general description of the occurrence;

(b) Their conclusions, including those related to the circumstances in the work place that contributed to the occurrence; and

(c) Their recommendations to eliminate or minimize the risk of a similar occurrence.

An investigator’s report must not reveal, directly or indirectly, the identity of people involved in an occurrence or the resolution process for an occurrence under the Regulations.

The employer must provide a copy of the investigator’s report to the principal party, responding party, the work place committee or health and safety representative and, if they were provided with notice, the designated recipient.

The employer and the work place committee or the health and safety representative must jointly determine which of the recommendations set out in the report are to be implemented, and the employer must implement all of the selected recommendations.

Completion of Resolution Process

The resolution process for an occurrence is completed when:

(a) If a work place assessment is required, the review and, if necessary, update of the assessment are carried out;

(b) The occurrence is resolved;

(c) If an investigator has provided a report, the employer implements its recommendations.

The employer must ensure that the resolution process is completed within one year after the day on which notice of the occurrence is provided.

If the principal party or responding party is temporarily absent from work for more than 90  consecutive days after the day on which notice of the occurrence is provided, the employer must ensure that the resolution process is completed within the later of:

(a) One year after the day on which notice of the occurrence is provided, and

(b) Six months after the day on which the party returns to work.

For every occurrence for which notice is provided, an employer or designated recipient must provide monthly updates regarding the status of the resolution process to:

(a) The principal party, beginning on the first month after the month in which the notice is provided and ending on the month in which the resolution process is completed; and

(b) The responding party, beginning on the first month after the month in which the responding party is first contacted by the employer or designated recipient concerning the occurrence and ending on the month in which the resolution process is completed.

Records and Reports

Health and Safety Records

The employer must keep the following health and safety records:

(a) The work place harassment and violence prevention policy;

(b) A copy of the documents that form part of the work place assessment;

(c) A copy of the documents that form part of each review and update of the work place assessment;

(d) 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 the Regulations to be jointly done by them, a record of the employer’s decision in that matter and the reasons for that decision;

(e) A record of each notice provided and of each action taken in response to the notice;

(f) For each instance where a time limit set out is not met, a document that sets out the reason for the delay;

(g) A copy of each report prepared by an investigator;

(h) A copy of each annual report (see below); and

(i) A copy of each fatality report (see below).

The employer must keep these records for 10 years.

Annual Report to Minister of Labour

On or before March 1 of each year, an employer must provide the Minister with an annual report that sets out:

(a) Their name or business name;

(b) Their business number, as defined in the Income Tax Act;

(c) The name of a person who can be contacted in respect of the report; and

(d) The following information respecting the occurrences for which notice was provided in the preceding calendar year:

(i) The total number of occurrences;

(ii) The number of occurrences that were related, respectively, to sexual harassment and violence and non-sexual harassment and violence;

(iii) The number of occurrences that resulted in the death of an employee;

(iv) If known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the CHRA;

(v) The locations where the occurrences took place, specifying the total number of occurrences that took place in each location;

(vi) The types of professional relationships that existed between the principal and responding parties;

(vii) The means by which resolution processes were completed and, for each of those means, the number of occurrences involved; and

(viii) The average time, expressed in months, that it took to complete the resolution process for an occurrence.

Fatality Report

If an occurrence results in the death of an employee, the employer must report the occurrence to the Minister within 24 hours after becoming aware of the employee’s death.

The report must set out the following information:

(a) The employer’s name or business name;

(b) The employer’s business number, as defined in the Income Tax Act;

(c) A general description of the occurrence;

(d) The date and time of the occurrence; and

(e) The name of a person who can be contacted in respect of the report.

Bottom Line for Employers

A significant period of time passed after Bill C-65 received Royal Assent before the government published the Regulations and confirmed the in force date for Bill C-65 and the Regulations.  Federally-regulated employers now know that both will be in force effective January 1, 2021, and they have all of the information they need to fully understand what their obligations will be under the CLC with respect to work place harassment and violence, including sexual harassment and sexual violence.  We encourage federally-regulated employers to waste no time in becoming familiar with these obligations and suggest that they immediately begin to put an infrastructure in place to satisfy all requirements.  

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