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Conducting workplace assessments under Bill C-65 | Part 5

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The final regulations under Bill C-65¹ have been released and will come into force, along with the legislation, on January 1, 2021. The Bill and the regulations introduce significant changes to how employers in federally-regulated industries² must prevent and respond to incidents of harassment and violence.

We have written about these upcoming changes, such as the expanded definition of harassment and violence, new requirements for employers’ policies, training, and risk assessments, the new mandatory resolution process to deal with incidents of harassment and violence, and the new process for conducting investigations. These blog posts have been updated to reflect the most recent set of changes, so please feel free to review them.

In this post, we are focusing on one element of the final regulations that we found interesting. The regulations require employers and their applicable partners to jointly carry out a workplace assessment in order to identify risk factors that contribute to harassment and violence in the workplace. Section 8 of the regulations states that in doing so, an employer and the applicable partner must take into account the following 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

At Rubin Thomlinson, we have long assisted our clients by conducting workplace assessments that are designed to identify workplace tensions that exist below the surface, so that they can be addressed before they erupt into conflicts, or worse. We conduct these assessments by speaking to employees, either directly or through surveys, and reviewing, where appropriate, the policies, procedures, complaint histories, and training practices of the organization. In reviewing the requirements of the regulations, we were struck by the degree of overlap between the work we have been doing and the new expectations.

In reflecting on some of the assessments that we have conducted, we can identify situations that contributed to a workplace culture with an increased risk of harassment based on some of the risk factors listed above. For example, in terms of organizational structure, we have seen overly hierarchal organizations that produce power differentials that can create and exacerbate tensions between individuals and within teams. A workplace culture of informal and ad-hoc decision making can lead to perceived or actual preferential treatment, and we know that when people feel they’ve been treated unfairly, things can get personal. Lastly, a review of complaint histories that are repetitive can show that there are systemic issues at play that will cause the conflicts to continue even if individual wrongdoers have had their behaviour addressed.

With respect to risk factor (e), “the measures that are in place to protect psychological health and safety in the workplace,” it is worth considering what employers can do beyond having a solid policy and training framework.

In 2013, the Bureau de normalisation du Québec (BNQ) and CSA Group developed a voluntary Standard on this concept, which was approved as a National Standard of Canada by the Standards Council of Canada. The voluntary Standard defines a psychologically healthy and safe workplace as one “that promotes workers’ psychological well-being and actively works to prevent harm to worker psychological health including in negligent, reckless, or intentional ways.” It defines psychological safety as “the absence of harm and/or threat of harm to mental well-being that a worker might experience.” The Standard also defines the strategic pillars of a psychological health and safety system as the prevention of harm, the promotion of psychological health, and the resolution of incidents or concerns.³ Although this Standard is voluntary, the full report provides some helpful guidance on what organizations might consider when contemplating what measures to implement to protect the psychological health and safety of their employees.

As employers work to ensure they are in compliance with the new regulations, workplace assessments will be a key component of their plans. By using and adapting the tools that we have used (and trained on) to assess workplaces in a variety of contexts, they will be able to get the information that they need and help prevent negative experiences of harassment and violence for their employees.

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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.

³Psychological health and safety in the workplace – Prevention, promotion, and guidance to staged implementation, CAN/CSA-Z1003-13/BNQ 9700-803/2013. National Standard of Canada. Reaffirmed 2018.