Federally regulated employers, be prepared: new Workplace Harassment and Violence Prevention Regulations due to take effect in a few months

Introduction

In the wake of recent amendments to the Canada Labour Code¹ to address harassment and violence in the workplace,² the draft Workplace Harassment and Violence Prevention Regulations (the “Regulations”) have been of particular interest to federally regulated employers due to the magnitude of the changes being introduced.

We have been waiting to hear the precise date when the new regulations will come into effect. The date has just been announced: the Regulations will come into effect on January 1, 2021.³ As a federally regulated employer, you will need to prepare for these Regulations, as they represent a significant change to federal labour law rules.

The Regulations are part of a multi-year effort by the federal government to eradicate harassment and violence in the workplace and to protect Canadian workers’ health and safety in federally regulated organizations. The issue has been a hot topic across the country, with much of the conversation focused on the implications for human resources management and governance principles. With new rules entrenched in the federal labour code, the expectation is that employers will shift from discussion to action.

The Regulations replace Part XX of the Canada Occupational Health and Safety Regulations,⁴ 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.⁵

Overview of the Regulations

Affected companies need to take steps to prepare for the coming into effect of the Regulations, as there are several detailed requirements to be met. For instance, there is a new framework for submitting complaints: notice can now be given orally or in writing and may be given by an anonymous witness. This, in itself, is a significant departure from many companies’ internal policies and practices.

The Regulations also impose strict and tight deadlines for investigating a complaint once it has been filed. Moreover, the complainant will have the right to be represented during the complaint process.

Employers (in conjunction with their policy committee, if one exists, or their workplace committee or health and safety representative) will need to develop a workplace harassment and violence prevention policy. In this regard, it should be noted that the policy must contain specific elements, including the support mechanisms available to employees, a description of the training to be provided on workplace harassment and violence, and an explanation of the resolution process. The policy and the accompanying training will need to be updated at least once every three years and following any change to an element of the policy.⁶

The Regulations emphasize conciliation and demonstrate a clear intention to encourage prompt resolution and discussion as the preferred approach to resolving complaints. These efforts must begin no later than 45 days after a complaint is filed.

When requested by the complainant, the employer must investigate all occurrences of harassment and violence that have not been resolved under the negotiated resolution and conciliation provisions. The Regulations provide a list of criteria that must be met for an investigation to be compliant. For instance, there are specific rules for selecting an investigator. In cases where the employer and the applicable partner (the policy committee, workplace committee or health and safety representative) have jointly developed or identified a list of persons who may act as an investigator, the employer will select a person from that list to carry out the investigation.⁷ Where no such list has been put in place, the investigator will be a person agreed to by the employer, the complainant and the respondent. If no agreement is reached within the prescribed time frame, the investigator will be a person from among those whom the Canadian Centre for Occupational Health and Safety identifies as having the requisite knowledge, training and experience.⁸

The investigation must conclude with the submission of a report. This must be given to the parties involved (i.e. the complainant and the respondent) as well as to the workplace committee or representative.⁹ The information to be included in the report is set out in the Regulations.¹⁰

Employers will need to adopt strong privacy protection measures to encourage employees to report occurrences of workplace harassment or violence. The workplace harassment and violence prevention policy should describe the measures taken to protect the privacy of those involved.

On or before March 1 of each year, an employer must provide an annual report to the Minister of Labour regarding complaints of harassment and violence in the workplace. The mandatory elements to include in the annual report are set out in the Regulations.¹¹

Practical tips

In recent years, federally regulated employers have had to adapt to various changes in federal labour law standards. The Workplace Harassment and Violence Prevention Regulations comprise significant changes that must be analyzed in order to be ready for their implementation on January 1, 2021. Many federally regulated companies will be examining these Regulations and their elements in the fall of 2020, in order to be ready for their coming into force.

In particular, we recommend that employers:

• update or adopt a workplace harassment and violence prevention policy, as per the Regulations;
• assess the risk factors for harassment and violence in their workplace;
• organize training sessions for staff and management;
• prepare a list of individuals qualified to act as investigators;
• assess the impact in their workplaces of the various requirements concerning consent to the choice of investigator, conciliation, and discussions with the relevant committees, to name a few;
• keep records of every incident of harassment and violence in the workplace.

Our Labour and Employment Law team has a highly developed practice in employment law and labour relations for federally regulated businesses. Please feel free to contact us for assistance in this matter.