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January 1, 2021 will be the date that Bill C-65, An Act to amend the Canada Labour Code (harassment and violence)¹ comes into force. The Bill promises to change how employers in federally-regulated industries² prevent and address incidents of workplace harassment and violence.
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 in their workplaces. 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 preventive measures. The assessment must consider the following risk factors:
a) the culture, conditions, activities and organizational structure of the workplace
b) circumstances external to the workplace, such as family violence, that could give rise to harassment and violence in the workplace
c) any reports, records and data that are related to harassment and violence in the workplace
d) the physical design of the workplace
e) the measures that are in place to protect psychological health and safety in the workplace
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 preventive measure. Finally, within six months after the risk factors are identified, an employer and the applicable partner must jointly develop and implement preventive measures and a prevention plan that mitigates the risk of harassment and violence in the workplace.
Suggestions for employers:
1. Develop competencies in conducting workplace harassment risk assessments and workplace culture 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) the mission statement regarding the prevention of and protection against harassment and violence in the workplace
(b) the respective roles of the employer, designated recipient4, employees, policy committee, workplace committee and health and safety representative in relation to harassment and violence in the workplace
(c) the risk factors, internal and external to the workplace, that contribute to workplace harassment and violence
(d) the training that will be provided regarding workplace harassment and violence
(e) the resolution process, including the name or identity of the designated recipient, and 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 workplace assessment must be conducted
(g) 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) 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 these regulations
(i) any recourse that may be available to persons who are involved in an occurrence
(j) the support measures that are available to employees
(k) the name of the person who is designated to receive a complaint
The policy must be made available to all employees.
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 reporting procedure.
Currently, employers are only responsible for training employees and the designated recipient 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, and how to recognize, minimize and respond to harassment and violence. Training will be required for new employees within three months of hire, or, in the case of an employee whose employment began before the day on which the regulations come into force, within one year after that day; again at least every three years; and following any update to the training or to an employee’s job if there it comes with an increased risk of workplace harassment and violence.
Suggestions for employers:
1. Review training materials to ensure that they contain the required components noted above. The training will now include how to recognize, minimize and respond to harassment and violence.
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 is a good time to review your processes and protocols to ensure that they comply by the time Bill C-65 comes into force.
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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.
4 The designated recipient is the person to whom notice of an incident of harassment or violence may be reported.