Written by Ron LeClair, Owner of LeClair and Associates Professional Corporation
Bill 132, effective on September 8, 2016, contains significant amendments to the Ontario Occupational Health and Safety Act (OHSA). Included among these amendments are:
(1) An expansion of “workplace harassment” to now include “workplace sexual harassment,” defined 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.
(2) The requirement that an employer create a policy and program with respect to workplace harassment which includes workplace sexual harassment. The program must be developed and maintained in consultation with the joint health and safety committee or health and safety representative within the workplace. Among other things, the program must:
• include a reporting mechanism for incidents of workplace harassment, including a reporting mechanism for when the alleged harasser is the employer or supervisor;
• ensure that all complaints and allegations are investigated; and
• set out how the complainant and respondent will be informed of the results of the investigation and any corrective action taken (which information must now be communicated to the complainant and respondent in writing).
(3) Expansion of the inspector’s powers to include the power to order that an employer conduct an investigation “by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector” and that a written report be prepared, at the employer’s expense.
Ministry of Labour (MOL) inspectors will be active in enforcing the “beefed up” protection against workplace sexual harassment. Some best practices to comply with the amendments include:
(1) Creating a Training Plan – The plan must spell out how the employer will train all of its employees on Bill 132. Training material should be drafted in consultation with either the Joint Health and Safety Committee (JHSC) or health and safety representative. All material must be reviewed and updated at least once per year.
(a) Reporting Procedures: This includes procedures for workers to follow when reporting incidents of workplace harassment to a person other than their employer or supervisor (i.e. if the employer or supervisor is the alleged harasser);
(b) Investigatory Procedures: These are procedures setting out how incidents or complaints of workplace harassment are to be investigated and dealt with;
(c) Confidential Information: The policy will be required to state that sensitive or confidential 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 investigating, taking corrective action, or by law;
(d) Corrective Action: Disciplinary policies should indicate when and how an employer will respond to conduct addressed by Bill 132; and
(e) Disclosing Results: Policies should articulate how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.
(3) Creating a Procedure for Mandatory Investigations – it is now mandatory to investigate every complaint of workplace harassment in a manner that is “appropriate in the circumstances”. MOL inspectors define what is “appropriate in the circumstances.” Some best practices related to the investigations include:
(a) Early Identification of Conflicts of Interest – a conflict of interest due to a personal relationship or fraternization between a manager and a subordinate may exist. Consideration must be given to whether an outside (external) investigator would be appropriate in certain circumstances. This should be determined at the outset of any investigation.
(b) Proper Documentation and Document Control – MOL inspectors have the ability to Order an employer to engage a third party (external) investigator in circumstances where the investigation of a workplace harassment complaint appears to have been deficient. The MOL wants evidence of a structured, documented investigation; in the absence of such evidence (or due to a conflict that taints the investigation), an order for an external investigation is very likely to follow. The cost of the external investigation must be borne by the employer alone.
(c) A “No Reprisal” Policy – The employer must not punish an employee for making a complaint in good faith. Reprisal can be overt, such as the extreme example of terminating an employee for bringing a complaint. Reprisal can also take more subtle forms, such as denial of overtime opportunities, passing an employee over for a promotion, or putting an employee on a less desirable shift, where the decision to do so is in any way related to the employee having made a complaint under Bill 132.
These are only some of the highlights of Bill 132. Employers must be diligent in fully reviewing and understanding the various amendments, and their new obligations, in order to remain compliant with Bill 132.
Ron LeClair and Tushar Anandasagar exclusively help employers navigate the many legal issues and obligations that impact upon their workplaces. Please contact Ron at 519-495-2773 if you have any questions about his article.
OSG offers a variety of services to help you get in compliance with Bill 132. Choose the option that works best for you, then give us a call to sign up for one of our training and/or consulting services.
London – October 11
Mississauga – October 28
London – October 11
Mississauga – October 28
Archive from July 18, 2016
By Jennifer Miller, Curriculum Development Coordinator
OSG has released two new Workplace Violence and Harassment courses. We have updated our Workplace Violence and Harassment course so that it incorporates the changes associated with Bill 132. We have also created a workshop-style course to help you evaluate your existing program, and make the necessary changes in order to be ready for when Bill 132 comes into force.
In 2015, Ontario Premiere Kathleen Wynne introduced “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment.” Wynne’s initiative has opened the political floor for the first time to conversations about gender equality, the wage gap, sexual violence and harassment in the workplace, and basic human rights. These issues have never been as prevalent in Canadian and international politics as they are right now.
The action plan has paved the way for the introduction of Bill 132. Bill 132 is an expansion on what is known casually as Bill 168 – Ontario’s 2010 Ontario Health & Safety Act (OHSA) legislation that requires employers to develop and implement a Workplace Violence and Harassment policy and program.
Bill 132 will require that your current policy be refined so that the definition of workplace violence and harassment includes sexual violence and harassment. It also demands updating of current processes, as the program must now include steps for reporting a complaint when the alleged harasser is the supervisor or manager.
Under Bill 132 you will be required to investigate all complaints of workplace violence and harassment, including sexual harassment. Additionally, under some circumstances the Ministry of Labour may order a third party investigation at the expense of the employer.
On September 8, 2016, Bill 132 will come into force. Prepare today by updating your existing Workplace Violence and Harassment program. Yearly review and revision, constant improvement, and staying current are key components of a successful Workplace Violence and Harassment program.
All employees are entitled to a safe workplace, free from violence and harassment. According to OHSA S.25(2)(h), the employer is required by law to take every reasonable precaution possible to protect all workers. This includes protecting them against the threat of workplace violence and harassment.
• 1 in 4 women will experience some form of sexual assault in her lifetime
• Over 80% of all sexual assault victims are female
• Only 6% of all sexual assault cases are reported
• Of all reported sexual assault cases, only 2-4% are false reports
If you regularly employ more than 6 people, you must have your Workplace Violence and Harassment Policy posted in a conspicuous location in your workplace. Post it to your Health and Safety Board today – it’s the law!
If you’re unsure where to start, call 1-800-815-9980 to speak to an expert. Whether you need to create a policy from scratch, or refine an existing one, let OSG help you create an effective Workplace Violence and Harassment policy.