Violence and harassment is an unfortunate reality of society – and of the workplace. Since April 1, 2019 (when New Brunswick’s new workplace anti-violence and harassment regulations took effect) every Canadian province and territory has an occupational health and safety regulatory scheme dealing specifically with workplace violence. Every Newfoundland and Labrador employer must already comply with occupational health and safety regulations mandating they conduct a workplace risk assessment and mitigate risks of workplace violence, and should be familiar, and in compliance, with those obligations. But as of January 1, 2020, those regulations will change, providing new protections to workers – and imposing new obligations on their employers.
The countdown is on for employers to understand the new regulatory requirements and create or review and revise their violence and harassment prevention plan and processes before they take effect, or face the significant liability risks for non-compliance under the Occupational Health & Safety Act or the Criminal Code, including corporate fines, personal fines, and even jail time. Here are five key changes to the N.L. regulations that will take effect on January 1, 2020 and tips to help employers comply.
1. More (mis)conduct covered
The changes expand the misconduct that workers are protected against – and that employers are obligated to prevent and address – under the regulations:
Worker-on-worker violence. The changes broaden the definition of “violence” to include “worker-on-worker” violence, a form of misconduct the existing regulations expressly exclude.
Workplace harassment. The changes also add a definition of “workplace harassment”: “inappropriate vexatious conduct or comment by a person to a worker that the person knew or ought to have known would cause the worker to be humiliated, offended, or intimidated”. Still, the changes expressly exclude the reasonable actions of an employer representative respecting the management and direction of workers from the definition of “workplace harassment”. This definition is generally consistent with the way in which courts, arbitrators and existing laws have defined it, and encompasses workplace sexual harassment, as well as harassment based on a personal characteristic protected by human rights law (for which a harassment victim could seek redress by making a human rights complaint).
Family violence. The changes require employers to take precautions to protect a worker where they become aware (or ought reasonably to have been aware) of the risk of “family violence” (as defined in the N.L. Family Violence Protection Act) in the workplace.
An existing workplace violence and harassment policy(ies) is a useful starting point, but the changes warrant an audit and revision, if necessary, to ensure compliance with the changes.
2. Wider violence risk assessment
The changes require that employers consider two new factors, in addition to those set out in the current regulations, when fulfilling their (existing) obligation to assess the risk of workplace violence:
- Workplace characteristics including demographics, culture and the presence of new workers.
- Issues raised by the workplace health and safety committee, representative or designate.
Sample risk assessment forms are widely available, but it’s essential that employers remember these can only be a guide. The risks and the assessment depend on the particular workplace, and the risk assessment must consider all factors the applicable regulations mandate on a case-by-case basis.
3. Proactive harassment prevention
It’s long been recommended that employers implement a workplace harassment policy, but with these changes, the law requires it. Employers’ obligations under the existing regulations are reactive, and exist only where a violence risk assessment identified risks. The changes to the regulations impose a new obligation on employers to proactively establish a written harassment prevention plan, in consultation with the relevant workplace health and safety committee, representative or designate, and in accordance with the strict requirements of the regulations.
Prevention plan. The plan must include the specific statements and procedures set out in the new regulations, including procedures for harassment reporting, investigation, and post-investigation notification and action. Again, audit an existing workplace harassment policy and revise it if necessary to ensure the new specific regulatory requirements are included – and followed.
Access & training. Employers must make the plan available to all workers, and provide employees with training on both the plan and on harassment prevention. Training is always a crucial step in effective policy implementation, but the changes make training necessary to comply with the law. When conducting this training, consider:
- Whether it’s most effective to deliver training using internal resources or an external subject-matter expert.
- Including the unique policy implementation and enforcement role of supervisors in their training.
- Asking all employees to sign and date an acknowledgement form indicating: they attended the training; received, read, and understood the plan; and had an opportunity to ask questions.
Annual review. Employers must review and update the plan “as necessary,” but at least annually. While the regulations don’t expressly require employers to conduct “refresher training”, it’s generally important to regularly train all employees on important policies to remind them of their rights and obligations.
4. Investigate harassment
Proper investigations generally are a vital part of workplace management, the value of which can’t be overstated. While employers are likely already under a legal obligation to investigate workplace harassment complaints, the changes to the regulations make this obligation express. In addition, the changes authorize health and safety officers to order an impartial third party investigation (at the employer’s expense) where they consider it “necessary”. Most employers will prefer to avoid such an order and maintain a degree of control over a harassment investigation. To help achieve this goal, before a harassment investigation is required:
- If such investigations are already conducted in-house, or that’s the plan, ensure there are qualified resources in place.
- If such investigations will (or might) be conducted externally, be sure to choose a reputable third party; having a vetted list of potential investigators on hand will help choose the right person in a timely manner.
5. Privacy protection
The changes recognize the growing awareness of and sensitivity to privacy rights, and require employers to protect employee privacy rights by:
- Keeping “personal information” obtained in the course of conducting a violence risk assessment confidential and not disclosing it except for purposes of an investigation or where required by law.
- Stating in the harassment prevention plan that “any information”, including personal information, obtained relating to workplace harassment won’t be disclosed unless necessary for an investigation, corrective action relating to the complaint, or where required by law.
By Brittany Keating, McInnes Cooper
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
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