On March 8, 2016, Bill 132, “Sexual Violence and Harassment Action Plan Act” received Royal Assent. Bill 132 amends several existing statutes with respect to sexual violence and harassment. Of particular note for employers are the upcoming changes to the Occupational Health and Safety Act (“OHSA”).
Bill 132 will amend the OHSA in the following ways:
“Workplace harassment”, which 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, will be amended to include “workplace sexual harassment”. Workplace sexual harassment means:
- 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
- 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.
The amendment notes that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
Additionally, in regards to a workplace harassment program, Bill 132 obligates an employer, in consultation with the Joint Health and Safety Committee or a health and safety representative, if any, to develop and maintain a written program to implement the employer’s policy with respect to workplace harassment. In addition to earlier requirements, workplace harassment programs must now:
- include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
- set out how incidents or complaints of workplace harassment will be investigated and dealt with;
- set out 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 the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law; and
- set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.
With respect to workplace harassment, Bill 132 establishes greater worker protections under the OHSA. Pursuant to the amendments, an employer shall ensure that:
- an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
- the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;
- the program developed with respect to workplace harassment is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment required under the OHSA; and
- the worker is provided with information and instruction that is appropriate for the worker on the contents of the harassment policy and program.
Finally, Bill 132 amends the OHSA by allowing an inspector to order an employer to cause an investigation into a complaint of workplace harassment under the OHSA to be conducted, at the employer’s expense, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the employer’s expense, a written report by that person.
These changes will come into force on September 8, 2016.