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In August 2020, my colleague Veronica Howard and I published a blog on conducting workplace assessments under Bill C-65. At that time, Bill C-65 and the related Regulations set out the requirements that federally-regulated employers were required to meet in order to satisfy their obligations under the Canada Labour Code (CLC), including the obligation to conduct a workplace assessment that consists of the identification of risk factors of harassment and violence in the workplace and the development and implementation of preventive measures to address those risks.
Since then, the federal government released an interpretations, policies, and guidelines document relating to Bill C-65 (Work Place Harassment and Violence Prevention (HVP) – 943-1-IPG-104 (“IPG”)) that provides additional guidance as to what is expected of employers when conducting a risk assessment under Bill C-65. Recent discussions with some of our federally-regulated clients suggests that there is still some uncertainty about the assessment process and so, in this blog, I am highlighting three key clarifications found in the IPG.
What are the necessary elements of the assessment process?
The IPG makes clear that the employer and their applicable partner1 are able to jointly decide on the elements of their assessment process. The IPG links to a checklist of questions they might consider, but also identifies other possible steps beyond merely completing the checklist. As part of the assessment, employees could be surveyed, interviews could be conducted, sites could be visited, and complaint histories could be reviewed. It is worth noting that Bill C-65 and the Regulations provide the minimum expectations of an employer’s program to address harassment and violence in the workplace. An employer and their applicable partner are always entitled to do more than what it required when identifying factors negatively impacting their employees’ experiences in the workplace.
How is the risk assessment to be updated?
Employers and the applicable partner are expected to jointly monitor the accuracy of the assessment and update the assessment when there are changes to the risk factors. In addition, they are expected to review the assessment every three years, and also whenever a principal party ends the resolution process or a responding party is not an employee of the employer. The IPG provides some guidance on what the latter reviews might look like. Where a principal party ends the resolution process, an employer and the applicable partner can rely on the information already provided and consider if there are any systemic issues, patterns of behaviour, or barriers to resolving the occurrence. Where the responding party is a third party, the employer could obtain as much information as possible from the principal party and share this with the applicable partner to try to identify the same things: systemic issues, patterns of behaviour, or barriers to resolving the occurrence.
In both cases, when the employer is providing information to the applicable partner, they should not disclose the identity of the person(s) involved in the occurrence, unless they consent to their identity being disclosed.
What are some possible preventive measures that might be identified in the assessment?
As noted above, the workplace assessment is expected to identify preventive measures to address the risks of harassment and violence in the workplace. The IPG gives employers and the applicable partners some specific possible preventive measures that could be included in the assessment, under three main categories: workplace training, workplace design, and administrative practices. While the list in the IPG provides a good starting point for employers, it is important that the preventive measures are directly informed by the information gathered in the assessment. And again, recall that the legislation sets the minimum expectations of employers; nothing prevents an employer from going further to improve the overall workplace experience for its employees.
While Bill C-65, the Regulations, and the IPG set clear expectations of federally-regulated employers to conduct a workplace assessment, there is also considerable flexibility given to employers in how they conduct and review the assessments, and in the measures they implement at the conclusion of the process. Employers and their applicable partners should take care to ensure that the choices they make are informed by nature of their workplace and the experiences of their employees in order to maximize the practical benefits of complying with the legislation.
1 “Applicable partner” refers to the policy committee or, if there is no policy committee, to the work place committee or the health and safety representative.
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