New workplace harassment law will be real ‘game changer’ for employers

Employers will have to completely reassess how they manage harassment and violence in the workplace, costing hundreds of millions

All eyes may be on the numerous amendments to the Canada Labour Code (CLC) that take effect on Sept. 1, but their impact on the 18,000 federally regulated employers and 900,000 employees governed by the legislation may pale against new harassment and violence obligations that will come into force in 2020.

“The workplace harassment regulations will be the real game-changers for many employers who will have to completely reassess how they manage harassment and violence in the workplace,” says Bill Hlibchuk of Montreal, an employment and labour law lawyer at Norton Rose Fulbright Canada LLP.

The law now recognizes that domestic violence is a workplace hazardLawyer Bill Hlibchuk

Which is not to say the Sept. 1 changes — which resound in the airline, banking, communications and transportation sectors, to name just a few — are insignificant. Among the most important of the imminent amendments are those entitling employees to as much as 10 days of annual leave if they or their children have been victims of family violence, with the first five days paid for workers with three months’ service. “The law now recognizes that domestic violence is a workplace hazard,” Hlibchuk says.

Other changes taking effect Sept. 1 require 24 hours written notice for shift changes and 96 hours notice of work schedules; allow employees to refuse overtime in the face of certain family responsibilities and to take unpaid breaks for medical reasons; mandate 30 minutes of unpaid break time for every five consecutive hours worked and eight hours rest between shifts; limit employers’ right to refuse an employee’s requests for flexibility in schedules and work locations; and increase entitlements to vacation and holiday pay.

But even as employers take on these new costs and burdens, they will have to turn their minds to vastly expanded responsibilities regarding harassment and violence found in Bill C-65, which received Royal Assent in October 2018 and which is expected to come into force at some point next year. Bill C-65 defines “harassment and violence very broadly as “…any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee …”.

And while inappropriate sexual conduct is certainly front-and-centre in the public eye these days, the bulk of harassment complaints in the workplace tend not to be sexual in nature. “Harassment complaints often involve allegations of bullying by employers, supervisors or co-workers,” Hlibchuk says. “But the line between reasonable management or direction of workers and harassment or intimidation can sometimes be blurry, and bullying amongst colleagues can be insidious.”

When it becomes law, Bill C-65 will require federally regulated employers to make substantial changes to how they address workplace violence and harassment. Among other things, the new law will require employers to identify risks of harassment and violence, implement preventive measures, designate someone to receive complaints, and respond to such occurrences, including providing support for affected employees.

Prevention training will be mandatory for all employees, including managers and supervisors. Complicating all this are questions relating to the reach of the amendments beyond the workplace. “The new leave provisions for family violence suggest that the dividing line between the workplace and home will be a bit of a gray zone,” Hlibchuk says. “What’s not clear is the extent of the employer’s responsibility to identify issues that have arisen at home that could find their way into the workplace. What does seem clear is that they won’t be able to turn a blind eye.”

Finally, the government’s proposed regulations under Bill C-65, for which the comment period expired several months ago, suggest there could also be a considerable shift in the balance of power between employers and employees with respect to violence and harassment issues. Currently, health and safety committees, composed of employer and employee representatives, have a consultative role in occupational health and safety issues. The final policy decisions, however, rest with the employers.

But the draft regulations, which describe health and safety committees as “partners”, contemplate that the committees will develop policies, training regimes and preventative measures jointly with the employer — which means that nothing can be implemented without the committees’ consent. “The regulations as currently drafted will take away the power of employers to make unilateral decisions that they have always been able to make in the past,” says George Vassos, an employment law partner in Littler LLP’s Toronto office.

The regulations also contemplate a complaints-resolution process. If the employer is unable to resolve an issue arising under Bill C-65, the matter can proceed by conciliation or investigation. Conciliation can only take place if the complainant and the respondent agree on the process and the conciliator. If they can’t agree, an investigation ensues — but employers would not retain the ability to choose the investigator unilaterally. “The appointment of an investigator under the regulations requires the concurrence of the respondent, complainant and the employer — and if they can’t agree, the Ministry of Labour makes the appointment,” Vassos says.

It all sounds convoluted and costly. And it is: by the federal government’s own estimate, implementing the regulations will cost employers some $840 million over the next decade.

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