Bill 132 (Sexual Violence And Harassment Action Plan Act): New Employer Obligations Regarding Policies and Investigation of Harassment
Bill 132, which we have been discussing for some time now, comes into force in September, which is now less than two months away. This amendment to the Occupational Health & Safety Act expands upon some of the changes brought about by Bill 168 a few years ago.
The Bill expands the definition of “Workplace Harassment” to include (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment. The amendment also specifically notes that a “reasonable action” taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment. The Bill also clarifies the definition of “Workplace Sexual Harassment”.
This legislation also empowers the Ministry to order that a third party investigator be retained to conduct a third-party investigation, at the employer’s expense.
Much like Bill 168, Bill 132 requires that employers have “programs” in place in addition to policies. In this case, the programs must specify
- how and to whom harassment is to be reported and provide for reporting to someone other than the employer if the harasser is the employer or supervisor of the complainant;
- how allegations will be investigated and dealt with;
- how confidential information will be treated (and, particularly, provide that information will not be disclosed unless it is necessary to do so for purposes of the investigation or discipline; and
- how the complainant and accused will be advised of the outcome of the investigation and any corrective action to be taken.
In addition, the Bill requires that allegations of harassment be investigated appropriately in light of the circumstances. This legislation also empowers the Ministry to order that a third party investigator be retained to conduct a third-party investigation, at the employer’s expense.
Finally, Bill 132 requires that employers provide training to their staff on the workplace harassment policy and program in place.
Failure to comply with the new obligation can result in liability. We are actively working with our employer clients to update their policies and processes in this regard.
AODA: New Obligations Coming Soon
In 2005, the Ontario government passed the Accessibility for Ontarians with Disabilities Act (“AODA”). The stated goal was to remove barriers to accessibility by 2025 by gradually introducing new obligations. Since 2005, requirements have been introduced in phase. Over time, obligations have increased. Recently, the government introduced Regulation 191/11: Integrated Accessibility Standards, which came into force in July of this year. It introduces a number of changes that employers need to be aware of.
The changes apply to each and every organization in the province providing goods, services or facilities, regardless of the number of employees. All accessibility standards, including the Accessible Customer Service Standard, are now part of the new regulation known as the Integrated Accessibility Standards Regulation. The change revokes the previous Accessibility Standards for Customer Service and the Exemption from Reporting Requirements.
In addition to the integration of the earlier Standards, the Regulation reflects the following changes:
- a change to the definition of “large organization” to be increased from one with 20 or more employees to be one with 50 or more employees in Ontario;
- ALL members of the organization must be trained on accessible customer service and how to interact with people with different disabilities, and not just those employees who worked with customers or created policies and procedures;
- Organizations must consider certain factors, including consulting with the person with a disability to understand their needs, before requiring a support person to accompany the individual;
- “large organizations” must, if they have not already done so, create a policy governing the provision of goods, services or facilities to persons with disabilities, under the new Customer Service Standards section of the Regulation, and notify the public of the availability of this document; and
- organizations with less than 50 employees are no longer required to put their accessible customer service policy in writing or make it public – though they may still have reporting requirements.
Like Bill 132, all employers in Ontario must ensure compliance or face liability. We are working with our clients to review their policies, update them as needed and ensure that required training is implemented and documented.
By Geoffrey Lowe
Author - Extraordinary Damages in Canadian Employment Law