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Additional employer obligations? Domestic and sexual violence

sexual violencePicking up on the recent amendments to the Occupational Health and Safety Act (“OHSA”) via Bill 132, which addressed workplace harassment and sexual harassment, a new proposed bill may now require employers to provide leave, accommodation, and training with respect to domestic and sexual violence.

What constitutes domestic violence and sexual violence?

This new bill—Bill 26, The Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016 (“Bill 26”)—defines “domestic violence” as an act or threat of abuse between an individual and a current or former intimate partner, between an individual and a child who resides with the individual, or between an individual and an adult who resides with the individual and who is related to the individual by blood, marriage, foster care or adoption, whether the abuse is physical, sexual, emotional or psychological, and may include an act of coercion, stalking, harassment or financial control.

Bill 26 defines “sexual violence” as any conduct of a sexual nature or act targeting an individual’s sexuality, gender identity or gender expression that is committed, threatened or attempted against an individual without the individual’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism, sexual exploitation and sexual solicitation, and may include an act that occurs online or in the context of domestic or intimate partner relationship.

What are the proposed changes?

Bill 26 seeks to change the OHSA and the Ontario Employment Standards Act, 2000 (“ESA”) in the following ways:

Create a Domestic or Sexual Violence Leave

One of the additions to the ESA would be a job–protected leave of absence for employees who have experienced or have children who have experienced domestic or sexual violence. This leave is in addition to other leaves under the ESA. The length of the leave is not defined and can last for a “reasonable time” or for a time prescribed by regulations made under the ESA. Unlike other unpaid leaves under the ESA, pursuant to this leave, employees would receive their regular wages that the employee would have earned for a regular work day for up 10 days of the leave in each calendar year. If the employee does not have a regular work day, the employee receives the total amount of wages earned and vacation pay payable in the four weeks before the week in which the employee began the leave.

The leave can only be taken for the following purposes:

  • to seek medical attention—this includes physical or psychological attention;
  • to obtain services from a social services program;
  • to obtain psychological or other professional counselling;
  • to relocate in order to ensure that future violence is less likely; and/or
  • to seek legal or law enforcement assistance.

Employers must keep confidential any information that relates to an employee’s leave unless:

  • the employee consents to the disclosure of the information;
  • the disclosure is needed by someone to do their job; or
  • disclosure is required by law.

Employers must also retain or arrange for the retention of all notices, certificates, correspondence and other documents relating to the employee’s leave for a period of three years after the day on which the leave expired.

Accommodation obligation

Bill 26 also requires employers to reasonably accommodate employees if they or their child have experienced domestic or sexual violence, up to the point of undue hardship. Accommodation may include a change in the employee’s place of work or their hours of work.

While Bill 26 acknowledges that an employer may require information and evidence to substantiate accommodation requests, it restricts such evidence to only that which is reasonable in the circumstances.

Employers must retain or arrange for the retention of all documents relating to the employee’s accommodation for a period of three years after the day on which the accommodation ceased.

Training and instruction

Bill 26 will amend OHSA to require employers to provide every manager, supervisor and worker with information and instruction about domestic and sexual violence in the workplace.

The specific requirements of this instruction are not clear. However, given the current requirements for training on workplace harassment and sexual harassment, employers may wish to add domestic and sexual violence to such training. In that regard, expert advice on ensuring that the training is fully compliant is recommended.

As of the writing of this blog, Bill 26 has passed second reading and is before the Standing Committee on the Legislative Assembly for consultation and, so it remains to be seen if the above changes will come into force. That said, with the recent legislative attention on protecting employees with respect to sexual harassment and violence, it is likely that employers may soon need to revisit their policies and programs to account for domestic and sexual violence.

By: Parisa Osborne

Rubin Thomlinson LLP

Employment law firm at Rubin Thomlinson LLP
Rubin Thomlinson LLP is a Toronto-based employment law firm dedicated to finding optimal legal solutions to challenging workplace issues. Rubin Thomlinson provides expert counsel to employees and employers on all legal issues pertaining to the workplace such as hiring, retaining and terminating employees; executive compensation and contracts; accommodation issues; and workplace human rights. Rubin Thomlinson is also considered a leading authority in the area of workplace harassment, and workplace investigations and reviews.
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