The Federal Government recently instituted a number of legislative and regulatory changes applicable to federally-regulated workplaces to strengthen protection for the rights of employees and to create stronger incentives for employers to comply with their obligations.
Among these changes are new requirements regarding workplace harassment and violence prevention measures and new administrative monetary penalties for non-compliance with health and safety and labour standards.
New Obligations Regarding Workplace Harassment and Violence
Recent amendments to the Canada Labour Code (the "Code") and the introduction of new Work Place Harassment and Violence Prevention Regulations (the "Regulations") create a number of important obligations for employers with respect to preventing and responding to occurrences of workplace harassment and violence. These obligations, effective January 1, 2021, apply to federally-regulated employers and include the following:
1. Workplace Assessment
Employers must assess the risk factors contributing to harassment and violence in the workplace and implement preventive measures addressing these risks. Their assessment must consider:
- The culture, conditions, activities and organizational structure of the workplace;
- The circumstances external to the workplace that could give rise to harassment and violence in the workplace (e.g. family violence);
- Any reports, records and data related to harassment and violence in the workplace;
- The physical design of the workplace; and
- The measures in place to protect psychological health and safety in the workplace.
Employers must have and make available to employees a policy outlining how they address harassment and violence in the workplace (the "Policy"). The Policy must contain a number of elements, such as:
- The employer's mission statement regarding the prevention of and protection against workplace harassment and violence;
- A description of the roles of the employer, employee, relevant committee, health and safety representative and designated recipient of complaints;
- The name of the person designated to receive complaints;
- A summary of the training provided on workplace harassment and violence;
- A summary of the resolution process;
- A summary of the emergency procedures;
- A description of any recourse available to a person involved in an occurrence or resolution process.
Both the workplace assessment and the Policy must be reviewed and updated, if necessary, at least once every 3 years as well as in other circumstances, such as when an element of the Policy changes.
3. Emergency procedure
Employers must develop, make available, and implement emergency procedures to handle an occurrence or threat of an occurrence posing an immediate danger to an employee's health and safety. These procedures must be reviewed and, if necessary, updated each time after they are used.
Employers must develop and deliver training once every 3 years to employees, the designated recipient of complaints and management personnel. Existing employees and management personnel must first receive training prior to January 1, 2022, and new hires must receive the training within 3 months of their start date. The training must be tailored to the workplace and must include specific elements, such as a description of the relationship between workplace harassment and violence and the prohibited grounds of discrimination set out in the Canadian Human Rights Act.
5. Resolution process
Various processes are available to employers to address and resolve workplace harassment and violence issues, such as negotiated resolutions, conciliations and formal investigations. The Regulations provide prescribed timelines, conditions under which the processes are to be used, and the steps to be followed once a notice of occurrence is submitted. For instance, employers have 7 days after the day a notice of occurrence is provided to communicate with the person submitting the notice, and they must ensure that a resolution process is completed within 1 year after the day on which the notice is provided.
6. Records and reports
Employers must maintain health and safety records, such as records of notices of occurrences of harassment and violence in the workplace. Certain documents must be maintained for a period of 10 years. Employers must provide the Minister with an annual report on workplace harassment and violence.
A number of the obligations listed above must be attended to jointly by the employer and a policy committee, a workplace committee or a health and safety representative (depending on the number of employees).
Also notable is that former employees may file complaints up to 3 months after the end of their employment.
Administrative Penalties for Non-Compliance with Occupational Health & Safety and Labour Standards
The Administrative Monetary Penalties (Canada Labour Code) Regulations (the "AMP Regulations") and accompanying amendments to the Code establish a new system of administrative monetary penalties for federally-regulated employers who violate the Code's health and safety or labour standards and associated regulations.
The system is effective January 1, 2021. Monetary penalties for administrative violations (such as record keeping requirements) will be imposed as of January 1, 2022, giving employers time to adjust some of their practices.
Under this framework, the consequences for non-compliance include the imposition of monetary penalties – which could range up to $250,000 – and the public naming of violators, meant to further encourage compliance.
The penalty imposed will be the sum of (i) a baseline penalty amount and (ii) a history of non-compliance amount.
(i) The baseline penalty amount is
predetermined based on the category of the person or department
having committed the violation and the type of violation
The categories of violators are individuals, micro businesses, small businesses, and large businesses or departments. Violations are classified under five violation types (A, B, C, D, E) – the gravity of which increases in alphabetical order – ranging, for instance, from violations related to administrative provisions ("A") to violations involving immediate life-threatening hazards ("E").
(ii) The history of non-compliance amount will apply if a violator has a history of non-compliance within the 5 years preceding the violation and will be twice the baseline penalty amount.
As noted above, information regarding those found to have committed violations can be published, including:
- The legal name, city and province of the employer responsible for the violation;
- The nature of the violation;
- The penalty amount;
- The compliance status, including whether the employer has paid the penalty;
- The dates of key decisions, if applicable.
Employers who are federally-regulated should ensure their practices are compliant with the new regulations. This includes – as noted above – identifying risk factors in the workplace, reviewing their Policy on harassment and violence to ensure it includes all mandatory elements, and providing training to their employees on preventing and addressing harassment and violence in the workplace.
Other government initiatives aimed at federally-regulated workplaces include a proactive pay equity system to address wage gaps and new pay transparency requirements. Additional blog posts will be available on these topics in the near future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.