Changes To Our Workplace Harassment Laws Have Come Into Effect, Are You In Compliance?
As of Sept. 8th 2016, significant changes have been made to our current legislation regarding workplace violence and sexual harassment. You must include sexual harassment in your policy and program. The following is the new definition for workplace harassment:
“Workplace Harassment” means:
- Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
- Workplace sexual harassment;
“Workplace sexual harassment” means:
- Engaging in a course of vexatious comments 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;
Without getting into all of the specifics, there are a few of the changes that you should be aware of, these would include the following:
- You now must have a policy which allows workers to report incidents of workplace harassment to a person other than the employer or supervisor, in the event that the employer or supervisor is the alleged harasser. You may choose to include members of your JHSC or a potential third party individual to conduct a non-biased investigation.
- You still must have a procedure in place for investigating an incident of workplace harassment, but now the procedure is required to include provisions regarding the information which is obtained through the investigation, that it will not be disclosed to anyone else other than those who are involved in the investigation.
- You also are required to have a procedure which describes a communication plan of how you will deliver the results of your investigation to the harasser as well as to those who have been harassed. This procedure should include how your business will take corrective action based on outcome of the investigation. In the past we would normally advise our clients about privacy issues, and that you weren’t required to tell the person that was being harassed about the disciplinary or corrective action taken against the harasser; other than the fact that the company had taken corrective action against the harasser. You must now disclose what disciplinary or corrective action was taken.
- Under the requirements for investigation into workplace harassment, employers are to ensure the investigation which is conducted into incidents of harassment are to be “appropriate to the circumstances”, which means that an incident involving offensive language or teasing may require a different approach to investigation than if someone was touched inappropriately. Does your company have anything in place that describes how you would investigate different types of complaints of workplace harassment?
- A newly added section, indicates that the results of an investigation are not required to be reported to your JHSC or to the workers. In the past, we’ve recommended that employers share the workplace harassment investigation information (only mentioning details of the incident, without mentioning names) with their JHSC or safety rep, so they may effectively advise the employer if the results of a violence risk assessment or the company policy and procedure need to be updated to reflect recent incident(s) within the company.
- Lastly, if you need to amend your current workplace harassment policy and procedures, training should be provided to your workers on the changes or additions to the company policy.
It is also to our understanding that the MOL will not be doing an immediate safety blitz on these changes to the Occupational Health & Safety Act. If the MOL decides to visit your workplace for a compliance audit, or if they receive a complaint from a worker in regards to how workplace harassment is being managed, they will most likely be looking to see that you have the appropriate workplace harassment policies and procedures in place.
With that said, do not think for a moment that the MOL is not serious about these changes; Ontario has the most descriptive requirements for employers to meet when it comes to workplace harassment. If you don’t manage these changes effectively, there may be huge liability in the event of an incident at your workplace. You can never predict what people will do, and can’t always prevent an incident such as domestic violence in disrupting your workplace, but you are better off by having proper policies and procedures in place that describe what you will do in the event that a potential incident does occur.
If you are unsure if your workplace harassment policies and procedures are meeting compliance, contact our office. We can help you meet compliance with properly developed policies and procedures.
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