New OHSA requirements for employers to prevent and investigate sexual harassment come into force in September

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Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, received Royal Assent on March 8, 2016.  As readers of Focus will recall, Bill 132 amends the Occupational Health and Safety Act (“OHSA”) to introduce new requirements for employers to prevent and investigate sexual harassment in the workplace (see Ontario moves forward with legislative amendments to combat sexual violence and harassment).  These new requirements will be in force September 8, 2016 and employers should begin to prepare to ensure compliance.

Bill 132 amends the definition of “workplace harassment” to include “workplace sexual harassment”.  Bill 132 defines “workplace sexual harassment” as:

(a) 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

(b) 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.

As a result of the inclusion of the definition of “workplace sexual harassment” in the amended definition of “workplace harassment”, an employer’s existing obligation under section 32.0.1 of the OHSA to have a harassment policy is expanded to require the policy to address workplace sexual harassment. The amended definition of workplace harassment also includes a proviso that clarifies that “a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.”

In terms of the obligation for an employer to have a program to implement the policy, Bill 132 introduces an important change.  The implementation program must be developed and maintained in consultation with the joint health and safety committee or health and safety representative, if any.

Bill 132 introduces a number of new requirements for the program itself.  In addition to setting out how employees may report complaints of harassment, and how the employer will investigate and deal with such complaints, Bill 132 stipulates that the program must also set out the following:

(1) measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;

(2) how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law; and

(3) how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.

Bill 132 also requires employers to investigate all complaints of workplace harassment.  The investigation must be appropriate in the circumstances and the investigation results, including any corrective action, must be provided to the worker and the alleged harasser.  The amendments stipulate that a harassment investigation report is a not a report respecting occupational health and safety and therefore is not required to be shared with the joint health and safety committee.

The final item to note is that the Ministry of Labour intends to establish a special enforcement team of inspectors trained to address complaints of workplace harassment and enforce employers’ new duties and obligations.  Bill 132 affords such inspectors with the authority to order employers to retain, at the employer’s expense, an independent investigator to conduct an investigation of workplace harassment.

There are a number of significant implications for employers arising from the Bill 132 amendments.  First, employers must review their policies in order to ensure they cover the more comprehensive definition of “workplace harassment” and meet the new requirements of Bill 132.

Second, employers should be prepared for more complaints of harassment – they will be required to investigate all such complaints.  As mentioned above, a failure to properly investigate may result in the Ministry of Labour inspectors appointing an external investigator. This would result in a significant cost to the employer, as well as a loss of control over the investigation process.  Employers are well advised to build up capacity to conduct investigations in-house by training designated individuals to conduct harassment investigations.

Emond Harnden will be offering a complimentary breakfast seminar on September 8, 2016, that will review the practical guidelines and best practices for workplace investigations and detail what your organization will need to achieve in order to meet the obligations under Bill 132.  We will be sending more information regarding this seminar shortly but to register please visit our Events page here.

 

For further information please contact Colleen Dunlop at 613-940-2734 and Amanda Sarginson at 613-940-2765.