New year, new regs: proposed harassment and violence regulations under Canada Labour Code expected to come in force in 2020

With 2020 right around the corner, now is the time for employers to prepare for the enactment of the proposed Workplace Harassment and Violence Prevention Regulations (Proposed Regulations) under Part II of the Canada Labour Code (Code), which were published earlier this year. Although the Proposed Regulations are still subject to change, their final form is expected to come into force at some point next year. The Proposed Regulations will apply to all federally regulated workplaces subject to Part II of the Code, including the federally regulated private sector, the federal public service, and parliamentary workplaces. Below is a summary of the Proposed Regulations.

Prevention and protection measures

Workplace Harassment and Violence Prevention Policy: The employer and applicable partner¹ must jointly² develop a workplace harassment and violence prevention policy to address, among other items, training, resolution process, workplace assessment, emergency procedures, and support measures. This policy must be made available to all employees and updated following an update to a workplace assessment or change to any element of the policy.

Workplace Assessment: The employer and applicable partner must jointly carry out a workplace assessment to identify risks and address preventative measures, and they must update it if it no longer accurately reflects the workplace assessment or if a notification of an occurrence³ is given and the resolution process cannot proceed. In any event, it must be reviewed every three years and updated, if necessary. The individual identifying risks must be qualified and must consider the factors affecting any such risk, including the workplace culture and any reports related to harassment. Preventative measures must be jointly developed and implemented within six months after the risks are identified.

Emergency procedures

The employer and applicable partner must jointly develop emergency procedures to be implemented if: an occurrence poses an immediate danger to the health and safety of an employee; or a threat related thereto. The emergency procedures must be made available to all employees.

Training

The designated recipient: Employers will be required to designate a person to be a “designated recipient.” Under the Proposed Regulations, the designated recipient is a person to whom notification of an occurrence may be given.

Training measures: The employer and applicable partner must jointly develop or identify training on workplace harassment and violence. The training must address various elements, including recognizing and preventing workplace harassment and appropriately responding to occurrences. The content of the training must be reviewed at least once every three years. The employer must receive training – and ensure employees and the designated recipient receive training – once every three years. Initial training must be provided to the designated recipient before assuming his or her duties and to each employee within three months of commencing employment. Moreover, the employer may be obliged to provide additional training if, for instance, an employee assumes a new role with an increased risk of workplace harassment or violence.

Within six months after the Proposed Regulations come into force, employers must ensure that they, themselves, and their employees receive the necessary training pertaining to workplace harassment and violence.

Support measures

The employer must make available (to all employees) information on medical, psychological or other support services available within their geographical area.

Resolution process

Notification and Response

A principal party⁴ or third party may notify the designated recipient of an occurrence, but may also notify the employer. The Proposed Regulations allow principal and third parties to do so anonymously. Where notified by a non-anonymous third party, the designated recipient (or employer, as the case may be) must confirm receipt within five days. Where notified by a principal party, confirmation of receipt must be provided, along with information pertaining to the workplace harassment and violence prevention policy and the resolution process. This same information must be provided to the responding party.

Resolution

• Early Resolution: The designated recipient (or employer, as the case may be) must make “every reasonable effort to resolve the occurrence.” If it cannot be resolved through early resolution, the principal party may choose to complete the resolution process through conciliation or an investigation.
• Conciliation: An occurrence may be dealt with through conciliation if an investigation has not begun and the principal and responding parties agree to the process (including who will facilitate the conciliation). Where this process cannot proceed or is unsuccessful, and the principal party chooses to proceed with the resolution process, an investigation must be conducted.
• Investigation: The designated recipient (or employer, as the case may be) must notify the principal and responding parties that an investigation is to be carried out. The designated recipient (or employer, as the case may be), the principal party and the responding party must select the investigator. If the parties are unable to agree within 60 days, the designated recipient (or employer, as the case may be) shall request that the minister of labour select the investigator. Regardless of who selects the investigator, he or she must be qualified, as understood under the Proposed Regulations.⁵ All relevant information must be provided to the investigator. Upon completing the investigation, the investigator must provide all parties with a final report and a summary report.
• Implementing Recommendations: The employer must provide a copy of the summary report to the applicable partner. The employer and applicable partner must jointly determine which recommendations will be implemented.
• Completing Resolution Process: Early resolution or conciliation is considered completed if successful and concluded within 180 days of notification of the occurrence. Where the principal party chooses not to proceed with the resolution process prior to the occurrence being investigated, it is considered complete when the employer reviews and updates the workplace assessment within one year of notification of the occurrence. Finally, an investigation is considered complete when the investigator provides the required reports and the employer implements the agreed-upon recommendations.

Take-aways for federally regulated employers

These new regulations are broad and will impose many new obligations on federally regulated employers. The following initial actions should be considered:

• Review existing policies for compliance with the new regulations or draft new policies;
• Determine those areas that are appropriate to address in the new mandatory workplace assessments This could include identifying risks in the workplace and begin establishing preventive measures;
• Make plans for the required training on harassment and violence in the workplace for the designated recipient and employees in general.

We caution employers not to underestimate the time, effort, and resources that will be needed to accomplish all that the new regulations will require if adopted as currently drafted. Although we can expect regulators will be somewhat lenient at the outset of the regulations’ coming into force, forethought and advance action will be essential to ensuring a smooth transition.

The authors wish to thank articling student Alexandra Saikaley for her help in preparing this legal update.