In March, 2016, Ontario passed the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 (“Act”) , which creates specific duties for all employers to:
develop policies and procedures to prevent workplace harassment and violence
investigate incidents and complaints of workplace harassment
train all workers on policy, reporting, and investigation process
During our recent webinar, we gave attendees the opportunity to ask Candian employment law expert and DLA Piper partner, Karen Bock, about Ontario Bill 132 as well as other compliance-related questions.
Top questions about complying with new Canadian law:
Disclaimer: Karen's answers are intended as general guidance only and should not be relied upon as specific legal advice.
1. Can you comment on association/non-profit that acts as an employer but also has members that pay dues to access program?
In provinces where employers are required to develop and implement workplace harassment policies and procedures, all organizations that employ individuals will need to comply with the applicable legislated requirements.
For instance, in Ontario the Occupational Health and Safety Act, defines an employer as “a person who employs one or more workers or contracts for the services of one or more workers”. The Act goes on to say that an employer must prepare a policy with respect to workplace harassment. If the employer regularly employs more than five workers, the policy must be in written form and must be posted in the workplace.
Under the Occupational Health and Safety Act, the employer’s obligation is to take every precaution reasonable in the circumstances for the protection of a worker. Therefore, if an employer has members who regularly interact with the employer’s employees, it may be advisable for the employer to ensure that its members are made aware of its workplace harassment policy as well, so that the members understand that they are not permitted to engage in harassment.
2. Are we required to train only Canadian employees or managers who manage employees in Ontario?
Technically, you’re only required to train your Canadian employees. However, it’s a best practice to train or educate your managers about the laws protecting the employees who report to them, regardless of where the manager is located.
3. Does the Emtrain Respect in the Canadian Workplace course, which we roll out to all employees, cover the training requirement?
Yes, it does.
4. Would it be helpful to have assessments after training to ensure understanding by employees and supervisors?
Yes, it’s helpful to include questions to test an employee’s knowledge and understanding of the concepts. However, you do not want to record a “score” that is associated with employees and which could be used to argue that someone does not understand the topic or the employer’s policy. Therefore, knowledge checks or assessments should require the employee to get the answer correct in order to proceed so that the learning record does not reflect any negative scores that could be used against the employer.
5. How does an employer keep information about a harassment claim confidential, given the employer must almost certainly interview the accused in such matters. Or is the need for confidentiality only to the degree possible?
There is no absolute confidentiality requirement. Information can be shared on a “need to know basis” during investigations and while the employer is trying to remedy a problematic situation.
The employer should make it very clear to all the participants in the investigation process that the participants are required to maintain confidentiality about the investigation, and that any employee who breaches his/her obligation of confidentiality will be subject to discipline.
6. How does the complaint get to the Inspector?
I assume that this is a question about the Ontario Ministry of Labour Inspectors who will soon have the power to issue orders about workplace harassment investigations. If that is the case, then the manner in which a complaint about workplace harassment gets to an MOL inspector is the same manner in which any complaint about workplace safety is made.
An individual can contact the Ministry of Labour through its Health and Safety Contact Centre or by contacting the Ministry directly to report unsafe work practices. An inspector may also learn of a workplace harassment issue when conducting an inspection for general compliance or other reasons.
7. Ontario's policy and training requirements appears to the most stringent levels of employer mandates and as such could we create a policy that meets Ontario's requirements and roll it out to all other provinces?
Yes. That would be a best practice. It makes a lot of sense for employers to incorporate the most stringent levels of protection into their training program and roll out one consistent program throughout Canada, with the ability for employees to see any additional content that applies specifically to them.
That way, you have one cohesive program that enhances the workplace culture and you don’t create a situation where some co-workers feel more protected than others based on their geography.
8. If we have only 4 employees in Canada (Ontario) and work remotely - does the policy and training apply?
The Occupational Health and Safety Act requires every employer who employs one or more employees to have a workplace harassment policy and program. If the employer regularly employs 5 or fewer employees, the policy does not have to be in writing or posted.
However, under the new provisions that come into force on September 8, 2016, the employer must develop and maintain a written program to implement its workplace harassment policy, and the program must include the elements set out in the new provisions. This requirement is not subject to any minimum number of employees.
The Act defines “workplace” broadly as “any land, premises, location or thing at, upon, in or near which a worker works.
9. Do you have to document that you have reviewed the policy annually?
Yes. Employers need to document that they published and informed employees of their rights under the policy and that employees have acknowledged the policy.
Here’s more information about Emtrain’s Policy Acknowledgement Tool.
10. Does this new law apply to Alberta?
No, the new provisions we discussed in the webinar are provisions in the Ontario Occupational Health and safety Act, which does not apply in Alberta.
11. We just updated our employee handbook for our organization in Ontario with counsel. The new policy was incorporated in the handbook. Is this sufficient, or should a stand alone policy also be distributed?
If your new policy incorporates the requirements for a workplace harassment policy and program set out in Bill 132 which come into effect on September 8, 2016, then your policy should not need to be further updated at this time.
The policy does not need to be a “stand alone” policy, but if your organization regularly employs more than 5 employees, the workplace harassment program will need to be posted in the workplace. You should have a method for ensuring that all employees receive and review the workplace harassment policy and program, and that each employee acknowledges receipt and review of the policy and program.