NEW FEDERALLY REGULATED WORKPLACE HARASSMENT AND VIOLENCE PREVENTION REGULATIONS
On January 1, 2021, the Government of Canada’s Bill C-65 Workplace Harassment and Violence Prevention Regulations SOR/2020-130 (the “Regulation”) came into effect. The new Regulation, which applies to federal workplaces (including the federally regulated private sector, the federal public service and parliamentary workplaces):
- is intended to provide guidance to federal employers regarding the design and implementation of their workplace harassment and violence prevention policies and procedures, to facilitate employees’ understanding of their legal rights and employers’ knowledge of their duties
- defines “harassment and violence” under subsection 122(1) of Part II of the Canada Labour Code as,
“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, including any prescribed action, conduct or comment.” [Emphasis added]
- sets a deadline of January 1, 2022 for employers to complete mandatory training of all employees
- enables employees to request a third party investigation where they are not satisfied with the resolution and/or conciliation process carried out by the employer
- requires the employer to ensure that the identity of a person involved in an occurrence of harassment and violence is protected and that no information is provided to a policy committee, work place committee, or health and safety representative, that would reveal the person’s identity, other than in some work refusal situations or if the person provides their consent
- expands the employer’s annual reporting requirement to the Minister of Employment, Workforce Development and Labour beyond cases resulting in injury, to include all occurrences for which a formal complaint is submitted to the employer
A summary of key requirements under the Regulation is provided below, however, the complete Regulation can be found at https://laws-lois.justice.gc.ca/eng/regulations/SOR-2020-130/page-1.html:
- Joint Assessment: The employer, together with the workplace committee or the health and safety representative, must conduct an assessment to identify the factors both internal and external (such as family violence) that contribute to the risk of workplace harassment and violence. From the point at which risk factors are identified, the employer must, within six (6) months, develop and implement preventative measures to protect the employee(s) from these risks. The assessment must be reviewed and revised every three (3) years.
- Workplace Harassment & Violence Prevention Policy: The employer, together with the workplace committee or the health and safety representative, must have a policy in place, as prescribed by the Regulation, which includes:
(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 for which a review and update of the work place assessment must be conducted under subsection 6(1);
(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 who are involved in an occurrence or in the resolution process for an occurrence under the Regulation;
(i) a description of any recourse, in addition to any under the Act or the Regulation, that may be available to persons who are involved in an occurrence;
(j) a description of the support measures that are available to employees; and
(k) the name of the person who is designated to receive a complaint made under subsection 127.1(1) of the Act.
3. Emergency Procedures: The employer, together with the workplace committee or the health and safety representative must have in place a procedure for instances where an occurrence or threat of harassment or violence poses an immediate danger to an employee’s health and safety.
- Training: Employers must provide mandatory training to employees which includes:
- a review of the Workplace Harassment and Violence Prevention Policy;
- a description of the relationship between workplace harassment and violence and the prohibited grounds of discrimination in the Canadian Human Rights Act; and
- information on how to recognize, minimize, and prevent harassment and violence.
Training must be completed by January 1, 2022, and for new employees, within three (3) months of their start date. Training must be reviewed and delivered to employees at least once every three (3) years.
- Support Measures: The employer is responsible for providing employees with information concerning the medical, psychological and other support services available within their geographical area.
- Resolution Process:
- A Notice of Occurrence, providing details as outlined in section 16 of the Regulation, may be submitted to the employer, or a designated recipient with the required training and expertise by the individual who experienced the incident(s) of harassment and/or violence (the “principal party”), or a witness to the incident(s). Notices may also be submitted by former employees once submitted within three (3) months of the termination of their employment.
- Within seven (7) days of receipt of the Notice of Occurrence, the employer or designated recipient must contact the principal party and provide details as outlined in section 20 of the Regulation. The employer or designated recipient should also provide these details to the Respondent.
- Within forty-five (45) days of receipt of the Notice of Occurrence, and once the Respondent has been notified, the employer or designated recipient, the principal party and the Respondent must make reasonable efforts to negotiate a resolution. Should the principal party and the Respondent be able to agree on a facilitator, they may also seek to resolve the occurrence through conciliation.
- Where negotiation and conciliation are not successful, the principal party may request an investigation of the occurrence. The criteria for selection of an investigator are outlined in section 27 of the Regulation and the investigator must have the requisite qualifications as outlined in section 28(1) of the Regulation.
- An investigator’s report must not disclose, directly or indirectly, the identities of any persons involved in the occurrence or the resolution process, and must include specific information as outlined in section 30 of the Regulation. Upon receipt of the investigator’s report, the employer, together with the workplace committee or the health and safety representative must determine which recommendations to implement and proceed to do so.
- The resolution process must be completed within one (1) year of the submission to the employer of the Notice of Occurrence. Employers are also responsible for providing the principal party and the Respondent with monthly status updates throughout the process of resolution, as outlined in section 34 of the Regulation.
- Records and Annual Reports: Employers are required to keep all records pertaining to workplace harassment and violence prevention, as outlined in section 35(1)(c)-(i) of the Regulation, for a period of ten (10) years.The employer must also submit an annual report to the Minister of Employment, Workforce Development and Labour, on or before March 1st of each year, providing details as outlined in section 36(d) of the Regulation, of the occurrences for which notice was provided under subsection 15(1) in the preceding calendar year.
Federally regulated employers should ensure that their workplace harassment and violence policies are in compliance as the deadline to have policies and procedures in place and training completed is January 1, 2022.