As we previously reported, the amendments to the Occupational Health and Safety Act introduced by Ontario’s Sexual Violence and Harassment Legislation, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, come into force on September 8, 2016.
By way of reminder, the OHSA amendments expand the Act’s definition of “workplace harassment” to expressly include “workplace sexual harassment”. The amendments also impose additional obligations on employers with respect to their workplace harassment policies, programs and investigations.
With September 8th quickly approaching, the countdown to compliance is on and employers must take the following steps to ensure they meet the Act’s requirements:
- Review and revise existing workplace harassment policies and programs to ensure that they specifically contemplate “workplace sexual harassment”.
- Work in consultation with the joint health and safety committee or health and safety representative (if applicable) to develop and maintain a written workplace harassment program, which sets out:
- reporting measures and procedures for workers to report incidents of workplace harassment to their employer or supervisor and, in the event that the employer or supervisor is the alleged harasser, to a person other than the employer or supervisor;
- 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 investigating, taking corrective action, or by law; and
- 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.
- Establish internal timelines and practices to ensure that the written workplace harassment program is reviewed as often as necessary, but at least annually.
- Ensure that internal processes are developed and implemented to:
- conduct investigations into all incidents and complaints of workplace harassment; and
- inform the workers involved in the incident and/or complaint of the results of the investigation and of any corrective action that has been, or will be, taken as a result.
- Develop and maintain resources that provide workers with information and instruction on the contents of the workplace harassment policy and program.
In addition to the OHSA’s existing enforcement mechanisms, the amended Act grants inspectors the power to order an employer to have an impartial third party conduct a workplace harassment investigation, at the employer’s expense. Notably, the OHSA amendments do not detail the circumstances in which an inspector can, or will, issue such an order.
The Ontario Government’s It’s Never Okay Action Plan, which led to the OHSA amendments, indicates that the Government intends to issue a new “Code of Practice” for employers, which will describe in more detail the steps that employers must take to comply with the OHSA amendments. The Code of Practice is expected to be released on or around the September 8th coming into force date and will hopefully provide more guidance on the implementation of the Act. Stay tuned as we will provide a further update upon its release.