Is Your Workplace Compliant with the New Amendments to the Occupational Health and Safety Act?


By
Kellie Gray
May 30, 2016

Significant amendments to the Occupational Health and Safety Act (the “Act”) will be coming into effect on September 8, 2016. These amendments will affect almost all provincially regulated workplaces with very few exceptions. As a result of the amendments, workplace harassment – including sexual harassment – continues to be a priority for employers.

What Has Changed?

The three most significant amendments to the Act are:

  1. The definition of ‘workplace harassment’ was expanded to specifically include ‘workplace sexual harassment’, which the Act defines as follows:
    1. engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
    2. making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
  2. Employers must take a more proactive approach and, in consultation with the Joint Health and Safety Committee or a representative, if any, develop a program to implement their workplace harassment policy. The program must provide a means to address workplace harassment through clearly defined complaint mechanisms, the conduct of investigations ‘appropriate in the circumstances’, written procedures outlining the investigation and reporting processes, as well as various training obligations.
  3. A new power was given to the Ministry of Labour to order employers to engage a third party to investigate complaints of workplace harassment, the cost of which will be borne solely by the employer.

What Employers Need to do Before September 8, 2016

  1. Review Bill 132, Sexual Violence and Harassment Action Plan (Supporting Survivors and Challenging Sexual Violence and Harassment);
  2. Amend their existing workplace violence and harassment policies including to ensure that workplace sexual harassment is expressly contemplated as a safety issue;
  3. In consultation with the Joint Health and Safety Committee or a representative, if any, develop a workplace harassment program to implement the amended policy wherein they:
    1. Develop clearly defined reporting mechanisms for workers, including to someone other than the worker’s supervisor or employer where that person is the alleged harasser;
    2. Develop a practice for investigating complaints, and ensure managers are trained in their obligations of how to respond to a complaint. Although an employer’s obligation is to investigate complaints in a manner ‘appropriate in the circumstances’, a consistent practice is recommended because the Act does not define what is appropriate; c. Develop processes to ensure the appropriate balance between confidentiality and privacy concerns with the new reporting requirements under the Act, which are to provide written results of the investigation and corrective measures taken to both the complainant and the alleged harasser;
  4. Emphasize the importance of taking complaints seriously and documenting all actions taken by the employer to investigate a complaint; 5. Create a plan to train all managers and employees on workplace violence and sexual harassment;
  5. Ensure they review their harassment program at least annually.

On August 12, the Ministry of Labour published its Code of Practice (referred to above), which should provide employers with some guidance on updating their workplace violence and harassment policies.

The Code of Practice is helpful but it leaves some questions unanswered, including what types of incidents trigger the duty to investigate, and what is an investigation that is ‘appropriate in the circumstances’. It will be necessary to turn to Courts and Tribunals to answer these questions. Employers are encouraged to seek legal advice if they are unsure if a particular situation triggers a duty to investigate.

The above information is for informational purposes only. It is not legal advice. Please don’t hesitate to contact us if you would like legal advice with respect to your organization’s obligations with respect to the amendments to the Act and/or would like assistance in revising your existing policy and procedures.