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2020 was supposed to be the year that Bill C-65, An Act to amend the Canada Labour Code (harassment and violence)¹ came into force. The Bill promises to change how employers in federally-regulated industries² prevent and address incidents of workplace harassment and violence. Employers have been waiting for the Bill to take legal effect for some time, but with more pressing matters on the national agenda these days, the federal government has not confirmed when this will happen.
At the date of writing, the number of new COVID-19 cases appears to be falling and some businesses across Canada have started to reopen. The federal government has issued guidance on the precautions employers ought to take to reduce the spread of the virus in the workplace. As federally-regulated employers review their policies and redesign their workplaces to suit the “new normal,” they might also keep the upcoming health and safety requirements under Bill C-65 front of mind.
Bill C-65 introduces changes to what employers must include in their risk assessments, policies, and training for employees, to prevent harassment and violence. I will address each in turn and provide some suggestions for employers.
1. Risk assessments
The Canada Labour Code (“CLC”) does not currently require an employer to carry out risk assessments for harassment (or sexual harassment) – only for workplace violence. With Bill C-65, the employer and the applicable partner³ will be required to jointly carry out a workplace assessment that identifies risks of harassment and violence in the workplace and then develop and implement preventative measures.
What’s more, the employer will be required to review and update the workplace assessment at least every three years, with respect to any change to the risks identified, and any change that compromises the effectiveness of a preventative measure. Finally, the employer will be required to develop and implement preventative measures that consider “the culture, conditions and activities of the workplace; and any reports, records and data that are related to harassment and violence in the workplace.”
Suggestions for employers:
1. Develop competencies in conducting workplace harassment risk assessments and workplace cultural assessments.
2. Consider the data you have on past harassment and violence complaints and incidents and develop prevention measures to address risk factors for similar incidents. Together with the applicable partner at your workplace, mitigate and monitor those risk factors within six months after the risks are identified.
With respect to workplace policies, employers will be required to have a policy that addresses both harassment and violence (not just violence and sexual harassment). The policy will need to include the following elements:
- a mission statement
- the role of workplace parties
- the factors that contribute to violence and harassment
- the training that will be provided
- a resolution process, including the name or identity of the designated recipient, and the way a principal party or third party may notify the employer or the designated recipient of an occurrence
- a notification process for external dangers (e.g., stalking)
- emergency procedures to deal with a harassment and violence occurrence that poses an immediate danger to the health and safety of employees or when there is a threat of such an occurrence
The policy must be made available to employees in printed and electronic form. Also, the employer will be required to provide to employees a copy of Part II of the CLC and a copy of the regulations, a statement of the employer’s general policy concerning the health and safety at work of employees, and any other information related to health and safety that is prescribed or that may be specified by the Minister.
Suggestions for employers:
1. Review your policies and procedures to ensure that they include the new requirements.
2. Undergo an assessment to arrive at suitable notification processes and emergency procedures, to create a more directive procedure within the policy.
3. Determine how you will provide to all employees with both hard copy and an electronic copy of the policy, a copy of Part II of the CLC and the regulations, and any other information related to health and safety that is prescribed or that may be specified by the Minister.
Currently, employers are only responsible for training employees on workplace violence, but no training is required on workplace harassment or sexual harassment. Under Bill C-65, all three will be mandatory.
Employers will need to train employees on the policy, the relationship between harassment and violence and human rights protections, how to recognize, minimize and prevent harassment and violence, crisis prevention, personal safety and de-escalation techniques, and how to respond appropriately to different incidents. Training will be required for new employees within three months of hire, and again at least every three years.
Suggestions for employers:
1. Review training materials to ensure that they contain the required components noted above. Notably, the training will now include how to recognize, minimize and prevent harassment and violence, crisis prevention, and personal safety and de-escalation techniques.
2. Review training schedules, because there are tighter timelines on when new employees must be trained.
In the future, federally-regulated employers will need to ensure that their policies, risk assessments, and employee training meet the new requirements under Bill C-65. Now might be a good time to consider reviewing your processes and protocols to ensure that they comply by the time Bill C-65 comes into force.
This blog is the second in the C-65 series – the first blog can be found here. Stay tuned for Part 3, where I’ll explore C-65’s rules on resolving incidents of harassment and violence.
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1 The full name of the legislation is Bill C-65: An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1.
2 Here is a list of federally-regulated industries.
3 The applicable partner is the policy committee, or, if there is no policy committee, then the workplace committee or the health and safety representative.