On September 8, 2016, Ontario employers will have much more to deal with under health and safety legislation.
Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, received royal assent on March 8, 2016. The bill expands the definition of workplace harassment under the Occupational Health and Safety Act (OHSA) to explicitly include sexual harassment. It also imposes significant new obligations on employers with respect to implementing policies and programs, and conducting workplace harassment investigations. The changes come into effect on September 8.
There is recent guidance – a Code of Practice – from the Ministry of Labour intended to help employers navigate their new and often complex obligations. Published just this month, the Code of Practice consists of four parts, each of which identifies measures employers may adopt to meet their OHSA workplace harassment obligations. Of note, employers may choose to adhere to one or all four parts of the Code of Practice. If an employer chooses to adhere to a part of the code, it must adopt and adhere to all the practices contained in that part to be deemed in compliance with the OHSA workplace harassment provisions referred to in that part.
Adopting the Code of Practice is not mandatory and several practices set out in the code would appear to go beyond the statutory obligations imposed on employers by the OHSA. Accordingly, failure to comply with certain practices in the code may not be a breach of the OHSA workplace harassment provisions. As the Ministry of Labour states, “The Code of Practice is just one way in which employers can meet the legal requirements regarding workplace harassment.”
Workplace harassment policy
OHSA Section 32.0.1 sets out an employer’s obligation with respect to preparing, reviewing and posting a written workplace harassment policy. Part I of the Code of Practice provides examples of conduct that constitutes workplace harassment and practices for preparing the written workplace harassment policy.
The code augments the OHSA requirements, including by requiring the policy to be dated and signed “by the highest level of management of the employer or at the workplace (e.g., President, CEO, Senior Human Resources Professional or the uppermost member of management at the workplace).” Further, to comply with Part I of the Code of Practice, the policy must provide information about “other resources” for a worker to seek help to address workplace harassment including, for example, the “Human Rights Legal Support Centre or employee assistance program, as appropriate.”
Workplace harassment program
Part II includes practices related to reporting and handling workplace harassment complaints, investigation standards and record-keeping requirements.
As noted in the Code of Practice, and consistent with the requirements in OHSA section 32.0.6, it is important for workers to be able to report workplace harassment to a person who will objectively address the complaint. Accordingly, the person who receives a workplace harassment complaint should not be under the alleged harasser’s direct control. An alternate person must be designated to receive a complaint or be notified of an incident if the employer or supervisor is the alleged harasser. The employer also has a duty to consult with the joint health and safety committee or the health and safety representative (if any), as it develops and maintains the workplace harassment program.
Employer’s duties concerning workplace harassment
Part III of the Code of Practice sets out the elements of an appropriate investigation into a workplace harassment complaint, including the duty under the OHSA to report the results of the investigation in writing to both the complainant and the alleged harasser.
While OHSA section 32.0.7 requires an employer to ensure an investigation into incidents and complaints of workplace harassment is “appropriate in the circumstances,” it does not impose or suggest a timeframe for completing the investigation. By contrast, Part III of the Code of Practice states the investigation must be completed within a timeframe of 90 calendar days or less, unless there are extenuating circumstances warranting a longer investigation. The Ministry of Labour cites “more than five witnesses” and “key witness unavailable due to illness” as examples of such extenuating circumstances. Employers who voluntarily adopt the Code of Practice must adhere to the 90-day timeline practice, as well as all other practices in Part III to be considered compliant with that part of the code.
Providing information and instruction on a workplace harassment policy and program
OHSA Section 32.0.7 requires an employer to provide workers with “information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment.”
Part IV of the Code of Practice provides practical guidance on how to meet this duty, for example, by requiring employers to provide all workers covered by the OHSA with information on what conduct is considered workplace harassment, as well as training to assist workers in knowing what conduct is unwelcome in the workplace. To comply with Part IV, the employer must give supervisors and managers additional information and instruction, including how to handle a workplace harassment complaint. Investigators must receive information and instruction on how to conduct an investigation appropriate in the circumstances and how to convey information to workers about the contents of their workplace harassment policy and program.
The Code of Practice also provides a template workplace harassment policy, program and investigation plan as further guidance materials.
As stated above, employers’ expanded obligations under the OHSA with respect to workplace harassment will take effect on September 8, 2016.