Federal harassment, violence regulations clarify obligations

Employers will be required to respond to every occurrence within 5 days

Federally regulated employers facing changes under Bill C-65 around workplace harassment and violence — set to come into force in 2020 — now have more details after the government’s release of proposed regulations.

With these regulations, there is a shift toward a much more proactive system with more obligations on employers, said Malini Vijaykumar, a labour and employment lawyer at Osler Hoskin & Harcourt LLP in Ottawa.

“In fact, these regulations require employers not just to kind of sit back and wait for complaints — they actually require employers to do, for example, proactive training, proactive workplace violence risk assessments. So, there are more obligations than employers might think.”

Overall, the proposed regulations align with the other jurisdictions, but the primary area where there is a difference is in the definition of harassment and violence on a full continuum of inappropriate behaviours, from teasing and bullying to physical violence, said Christopher Simard, spokesman for Employment and Social Development Canada. Additionally, Bill C-65 allows former employees to bring forward a complaint for up to three months after they cease to be employed.

As part of the new rules, employers are required to jointly develop a prevention policy that outlines information on how they will address harassment and violence. The policy must also outline how an employer is to be informed of external dangers — such as family violence and stalking — that could result in workplace harassment and violence, and the measures they may implement to minimize those dangers.

As part of the resolution process, employers would be required to respond to every notification of an occurrence of harassment and violence within five days.

“Employers now have five days to confirm that they have this notification, let the parties know or the applicable party know how the policy can be accessed, explain the resolution process and let them know that they can get representation during the resolution process,” said Vijaykumar.

There are some very tight timelines, so it’s going to be “a little bit onerous for federally regulated employers to manage,” said Shane Todd, a partner at Fasken in Toronto.

“I’m hoping they do what the Ontario government did, which was a lot of education in advance, even after they go live. And there was more education rather than hard enforcement right out of the gate, because I think that [employers will] need some time to get up to speed on things.”

Training around harassment and violence would have to be delivered at least every three years and provide instruction on the prevention policy, including crisis prevention, personal safety and de-escalation techniques. The training is going to be specific to the culture and nature of the workplace, said Vijaykumar.

“There is some flexibility worked in to account for the particular needs of that particular workplace and what might work for the employer and employees there.”

Unless there’s any major pushback, this is likely to be what the regime will look like going forward, said Todd, given the fact that extensive stakeholder consultations have already been done.

“And a lot of it isn’t going to be controversial. These are things that employers are familiar with: develop a policy, do an assessment, create some procedures, provide training,” he said. “Those things aren’t going to require much work for most employers — they probably will have that already.”

This article originally appeared in the August/September 2019 issue of COS.