On March 8, 2016, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 (the “Act”) received Royal Assent.
The Act which was first introduced as Bill 132 on October 27, 2015, amends six statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. Notably for employers, the Act amends the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”) and creates new obligations for employers concerning workplace harassment. The amendments to the OHSA will come into force on September 8, 2016.
WORKPLACE HARASSMENT INCLUDES SEXUAL HARASSMENT
The Act expands the definition of “workplace harassment” in the OHSA to include “workplace sexual harassment” which is defined as:
- 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
- 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.
NEW EMPLOYER OBLIGATIONS
The amendments to the OHSA require employers to develop and maintain a written program to implement their workplace harassment policy. The written program is to be created in consultation with a joint health and safety committee or health and safety representative, if applicable, and must be reviewed at least annually. The written program must outline, amongst other things:
- 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;
- how incidents or complaints of workplace harassment will be investigated and dealt with;
- 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
- 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.
The Act also requires that employers ensure that their harassment policy and written program is properly implemented and that workers receive proper information and instruction on the policy and program. Specifically, an employer must make sure that an appropriate investigation is conducted into incidents and complaints of workplace harassment. Employers must ensure that the worker and alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and any corrective action taken.
One of the most significant amendments to the OHSA is that OHSA inspectors now have the power to order that an employer hire an impartial third party, at the employer’s expense, to conduct a workplace harassment investigation and produce a report. The amendment does not, however, specify the circumstances in which the inspector will order an employer to retain an impartial third party, or how impartiality will be determined.
In order to ensure privacy and confidentiality, the results of an investigation conducted into incidents and complaints of workplace harassment will not be disclosed to the committee, a health and safety representative or employees, unlike other investigations conducted under the OHSA.
TAKEAWAY FOR EMPLOYERS
The amendments to the OHSA create significant new obligations for employers, but also make clear that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace does not constitute workplace harassment.
Employers should begin the process of reviewing and updating their workplace harassment policies and programs to ensure they comply with the OHSA amendments. Employers should also ensure that managers, human resources personnel and workers receive appropriate training and understand the meaning and impact of the amendments well before they come into force.