Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 comes into effect on September 8, 2016 for employers, and January 1, 2017 for colleges and universities. The Act makes various changes to the Occupational Health and Safety Act ("OHSA").
If you are an employer, and have not already made plans to bring your organization into compliance, now is the time to do so.
As a reminder, here are the important changes:
Definition of Workplace Harassment to Include Sexual Harassment
The OHSA's definition of "workplace harassment" will be expanded 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.
This means that all employers' obligations under Bill 168 that took effect in 2010 with respect to workplace harassment will also apply to workplace sexual harassment.
A Written Program that contains the (updated) Policy
Under the OHSA, employers are required to have a policy that prohibits workplace harassment. Bill 132 expands this requirement, which is to be offered under the employer's "program". The policy must contain the following mechanisms:
- Reporting 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; (our emphasis)
- Maintaining confidentiality unless the disclosure is necessary for the investigation or corrective action, or is required by law; and
- How the complainant and respondent will be informed of the results of the investigation and of any corrective action taken.
We note that this program must be reviewed "as often as necessary, but at least annually".
Bill 132 states that an employer "shall provide a worker with information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment". This means that the employer cannot simply update its policy. The employer must go further. It must also train employees on the new provisions.
Mandatory Investigations of Complaints and Incidents
Bill 132 requires employers to perform investigations into complaints and incidents of workplace harassment that are "appropriate in the circumstances". It also provides the inspector under the OHSA the power to order an employer to engage an independent third-party to conduct a workplace harassment investigation and obtain an investigation report, all at the employer's expense.
How to Comply
We are expecting a Code of Practice from the Ministry of Labour, which will set out its expectations of what employers need to do to be compliant with Bill 132. However, the timing of delivery is uncertain and given that there are only two months before Bill 132 comes into force for employers, we think it prudent to begin compliance measures now.
Based on our reading of the Bill, we think employers should do the following:
- Update workplace harassment policies and procedures
Policies must contain provisions dealing with workplace sexual harassment. This includes a definition of what workplace sexual harassment is, as well as what an employee should do to report a complaint or incident, and how these complaints and incidents will be investigated.
- Train employees on the updated policies and procedures
This can be done "live" in-person, through e-learning, or any other creative way that the employer can implement to deliver the training. Regardless of the method, the objective is to inform and educate employees on the new provisions of the employer's policy.
- Ensure your organization can conduct a workplace investigation that is "appropriate in the circumstances"
Does your organization have internal investigators who are trained and experienced? Do they understand the dynamics of sexual harassment in the workplace? Are they knowledgeable in terms of the process requirements of an investigation? Are they good at what they do? Would they be confident or embarrassed if their reports were examined by a Ministry of Labour inspector? These are all questions that should be asked and answered honestly before Bill 132 comes into effect on September 8, 2016. If there is a skills gap in your organization, and there is no one internally who can conduct a workplace investigation competently, now is the time to train them so that they can once the new regime is in force.
- Figure out how and when to "go external"
We believe that skilled internal HR professionals can conduct many investigations. However, there will be times because of concerns about bias, or subject matter, or complexity, that an investigation is better performed by an external person. As your organization prepares for Bill 132, consider what those circumstances would be, and who you would retain if you needed that support. Whether it is a formal or informal roster, it is much easier to establish a relationship with an external investigator when you have time, as opposed to when there is a crisis.
Interested in learning more about Bill 132? Follow this link to listen to our Bill 132 podcast.