Consolidated framework for workplace harassment and violence coming into force for federally regulated employers

Federally regulated employers may need to assess and revise their current harassment and violence in the workplace policies. The Government of Canada announced on June 24, 2020 that the Workplace Harassment and Violence Prevention Regulations (the Regulations), along with its legislation[1], will take effect on January 1, 2021, bringing with it a number of requirements for federally regulated workplaces with respect to harassment and violence in the workplace.

Consolidated framework for harassment and violence

Prior to the introduction of the Regulations, the legal framework under the Canada Labour Code (Code) with respect to harassment and violence was fragmented, with some workplaces governed by the Canada Occupational Health and Safety Regulations and others governed by sector-specific regulations, including the Coal Mining Occupational Health and Safety Regulations, Maritime Occupational Health and Safety Regulations, and more.

The rationale of the Regulations is to streamline and consolidate the approach federally regulated employers must take in response to workplace harassment and violence. The Regulations apply to all federally regulated work places that fall under part II of the Code, including those workplaces governed by the Parliamentary Employment and Staff Relations Act.

Employer’s decision prevails

The Regulations impose a number of obligations on employers and the “applicable partner”, defined as the policy committee or, if there is no policy committee, the workplace committee or the health and safety representative.

It is possible there will be instances where an employer and the applicable partner are unable to agree on how to address a matter contemplated by the Regulations. Anticipating this, the Regulations explicitly state that in circumstances where the employer and their applicable partner disagree, the employer’s decision prevails. This, importantly, ensures that employers – who are ultimately responsible for the health and safety of their employees under the Code – have the final say on any matters that cannot be resolved through collaboration with their applicable partner.

Requirement to carry out workplace assessments

Under the Regulations, employers and their applicable partners must jointly carry out workplace assessments by identifying risk factors, taking into account:

• The culture, conditions, activities and organizational structure of the workplace;
• Circumstances external to the workplace, such as family violence, that could give rise to harassment and violence in the workplace;
• Any reports, records and data that are related to harassment and violence in the workplace;
• The physical design of the workplace; and
• The measures that are in place to protect psychological health and safety in the workplace.

In carrying out the workplace assessment, employers and their applicable partner must also jointly develop and implement – in accordance with their developed implementation plan – preventative measures that address the identified risk factors within six months of identifying the risk factors.

In addition to monitoring the accuracy of such workplace assessments, the Regulations set out when employers and their applicable partners are required to review the workplace assessment. Specifically, the employer and their applicable partners must review the workplace assessment every three years, each time the employer and their applicable partner are notified of an occurrence that is not resolved and the principal party ends the resolution process, and each time if the responding party is not an employee or the employer.

Essential elements of a workplace harassment and violence policy

In addition to the requirement to develop a workplace harassment and violence prevention policy, section 10 of the Regulations outlines the essential elements that the policy must contain. The policy must include:

• The employer’s mission statement regarding the prevention of and protection against harassment and violence in the workplace;
• A description of the different roles in relation to harassment and workplace violence in the workplace;
• A description of the identified risk factors that contribute to workplace harassment and violence;
• A summary of the training that will be provided to employees regarding workplace harassment and violence;
• A summary of the resolution process for incidents of workplace harassment and violence;
• When and how the workplace assessment will be reviewed and updated;
• A summary of the emergency procedures that will be implemented;
• How the employer will protect the privacy of individuals who are involved in an occurrence or in the resolution process for an occurrence;
• A description of any recourse, in addition to the Act or the Regulations, that may be available to individuals;
• A description of the support measures that are available to employees; and
• The name of the person designated to receive a complaint under the Act.

The employer and their applicable partner must review the workplace harassment and violence policy at least once every three years, and following any change to an element of the policy.

Resolution processes for incidents of workplace harassment and violence

The Regulations set out in detail the steps in the resolution process for incidents of workplace harassment and violence, referred to as “occurrences”. The steps in the resolution process are as follows:

1. Choose a designated recipient. The employer must designate a person, or work unit, as a “designated recipient” to whom notice of an occurrence may be provided.
2. Receipt of notice of an occurrence. The Regulations outline when notice of an occurrence must be provided to the employer or the designated recipient. The notice of an occurrence must contain the name of the principal party – i.e., the subject of the occurrence – and the responding party (if known), the date of the occurrence, and a detailed description of the occurrence. If a notice does not contain the name of the principal party, or the identity of the principal party cannot be determined, the occurrence is deemed resolved upon conclusion of the initial review.
3. Contact with principal party within seven days. The employer or designated recipient must contact the principal party and provide them with specified information, including the steps in the resolution process and that the principal party may be represented during the resolution process.
4. Contact with witness within seven days. If the notice of occurrence was provided through a witness, and not the principal party, then the employer or designated recipient must contact the witness to confirm receipt of the notice.
5. Contact with responding party. On the first occasion that the employer or designated recipient contacts the responding party, the responding party must be provided with specified information, including the steps in the resolution and the fact that they may be represented during the resolution process.
6. Negotiated resolution/conciliation. The employer or designated recipient must make every reasonable effort to resolve the occurrence, and must begin such efforts within 45 days of receipt of the notice. The Regulations specify that “reasonable efforts” include a review by the principal party and the employer/designated recipient of the notice of occurrence to determine whether the action, conduct or comment constitutes harassment and violence as defined in the Act. If the principal party and responding party agree, they may also engage in a conciliation.
7. Investigation. If the occurrence is not resolved through negotiation or conciliation, then the principal party can request an investigation. The Regulations set out the process for selecting the investigator, and the qualifications the investigator must possess. At the conclusion of the investigation, the investigator is to publish a report outlining the occurrence, the investigator’s conclusions, and the investigator’s recommendations to eliminate or minimize the risk of a similar occurrence. The employer and workplace committee or the health and safety representative must jointly determine which of the recommendations set out in the report to implement.
8. Monthly status updates. The employer or designated recipient must provide monthly updates regarding the resolution process to the principal party and the responding party.
9. Completion of resolution process within one year. The employer must ensure that the resolution process is completed within one year of the receipt of the notice of occurrence. If the principal party was absent from work for more than 90 days after receipt of the notice of occurrence, the employer must ensure that the resolution process is completed within the later of one year after receipt of the notice or six months after the day on which the principal party returns to work.   

Requirement for training on workplace harassment and violence

The Regulations require that employers and their applicable partners develop (or identify) a training program that addresses workplace harassment and violence. The training must be specific to the culture, conditions and activities of the work place, and must include:

• The elements of the workplace harassment and violence policy;
• The relationship between workplace harassment and violence and the prohibited grounds of discrimination outlined in the Canadian Human Rights Code; and
• A description of how to recognize, minimize, prevent and respond to workplace harassment and violence.

Employees must receive the above training within one year after the day on which the Regulations come into force or, for employees whose employment begins after the Regulations are in effect, within three months of the employee’s start. Going forward, employees must continue to receive training at least once every three years, and following any update to the training or following the employee’s assignment to a new activity or role for which there is an increased or specific risk of workplace harassment or violence.

The designated recipient must also receive training both before assuming their duties and at least once every three years going forward, and the employer must undergo the training within a year of the Regulations coming into force and at least once every three years going forward.

Employers and their applicable partners are also required to review the training program at least once every three years.

Other notable requirements for employers

The Regulations also outline a number of other responsibilities that federally-regulated employers and their applicable partners will need to comply with, including the following:

• Developing and implementing emergency procedures to address occurrences of workplace harassment or violence that pose, or threaten to pose, an immediate danger to the health and safety of an employee;
• Making available to employees information respecting the medical, psychological or other support services that are available to employees within their geographical area;
• Keeping specified health and safety records for a period of 10 years;
• Providing to the Minister of Labour, each year, on or before March 1, an annual report that sets out specified information including the total number of occurrences, the number of occurrences related to sexual harassment and violence and non-sexual harassment and violence, the number of occurrences that resulted in the death of an employee, the number of occurrences that fell under a protected ground of discrimination, and the average time (in months) it took to complete the resolution process for an occurrence; and
• If an occurrence results in the death of an employee, reporting the employee’s death to the Minister of Labour within 24 hours of becoming aware of the fatality. 

Before January 1, 2021, employers should carefully review and, if necessary, revise their current workplace harassment and violence policies and procedures to bring them into compliance with the Regulations. Such reviews should be timely, and employers should be particularly mindful of the prescribed timelines for conducting workplace assessments, implementing training programs, and other requirements under the Regulations.

For more information on the requirements under the Regulations, or for advice on how to bring your current policies and procedures into compliance, please contact a member of the Dentons Employment and Labour group.  

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[1] 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, S.C. 2018, c. 22.