Workplace Harassment and New Considerations for Federally Regulated Employers

Effective January 1, 2021, employers in federally regulated industries, such as banking, transportation, and telecommunications, have new obligations under the Workplace Harassment and Violence Prevention Regulations (the “Regulations”), and Bill C-65.

The timing of this legislation could not be more fortuitous -- the laws are coming into effect right around the same time that the Governor General of Canada, Julie Payette, has resigned in the wake of a workplace harassment scandal.

1. What do the new laws require?  

Among other things, the new laws require employers to:

1. Identify risk factors for workplace harassment and violence, and develop preventative measures based upon those risk factors; and
2. Adopt a workplace harassment and violence prevention policy.

The Regulations take a largely proactive approach to preventing workplace harassment – not just responding to it.

2. Why is the proactive approach important?  

A purely reactive approach to workplace harassment is simply not enough. The reports on Ms. Payette’s resignation contain an interesting detail: no “formal complaints or official grievances” of workplace harassment had been filed. Even still, an investigation made “scathing” findings of a toxic work environment, and verbal harassment which left employees in tears.  Workplace harassment issues – even very serious issues -- frequently go un-reported and unaddressed, often to an employer’s detriment. We see Payette’s case as proof of this concept.

3. Identifying risk factors  

The Regulations require employers, together with their health and safety committees, to identify specific risk factors for workplace violence and harassment. Section 8 provides a specific list of factors to consider in that process, including:

1. Culture, conditions, activities, and structure of the workplace;
2. External circumstances which could lead to violence in the workplace, such as family violence;
3. Reports, records, and data related to workplace harassment;
4. The physical design of the workplace;
5. Measures in place that protect “psychological health and safety”.

We recommend that employers treat section 8 like a checklist, by reviewing each of the factors listed with careful consideration and, taking note of any particular risk factors. External research may also be helpful. For instance, some studies have shown that customer-facing roles, like retail and food service, experience higher rates of workplace harassment.

4. Developing preventative measures  

The Regulations require preventative measures, but only provide very general guidance on the kinds of preventative measures that are appropriate – aside, of course, from adopting a workplace harassment and violence policy (see below). As a good starting point, we recommend the following:

1. Regular training on workplace violence and harassment;
2. Procedures for reporting complaints of workplace violence and harassment, including to someone other than the person’s manager (if the manager is the harasser);
3. Making the company’s investigation and resolution process clear.

To some extent, preventative measures should be tailored to your business, depending upon the risk factors you identify with your health and safety committee.

5. Adopting a Workplace Harassment and Violence Policy  

The requirements for such a policy are more stringent, but less specific than those required by similar provincial legislation, including in Ontario.

The policy must contain:

1. mission statement;  
2. description of the roles;  
3. description of the risk factors;  
4. summary of the training that will be provided;  
5. summary of the resolution process, including the name of the person in charge of receiving complaints, and how complaints may be made;  
6. The requirement to regularly review the policy, including upon receipts of complaints;
7. summary of emergency procedures for complaints that pose an immediate risk to health and safety;  
8. commitment to maintain the privacy of individuals involved in complaints;  
9. summary of the recourse that may be available to complainants;  and  
10. description of support measures that are available to employees.  

Because of the strict requirements of the Regulations, but the lack of specific direction on how employers are to comply with some of these requirements, we recommend that employers seek legal advice to draft and implement their workplace harassment policies and programs.

Contact Hyde HR Law for expert, tailored advice on keeping your business in compliance with the new federal workplace harassment and violence legislation.