Major OHSA changes imminent

A leading industry lawyer explains the impending changes which will address workplace harassment.

Major OHSA changes imminent
Changes to the Occupational Health and Safety Act have been on the horizon for close to a year now but as the actual amendment creeps closer, some employers still face uncertainty.

Here, leading employment lawyer Andrew Cogswell explains exactly what’s in store for employers and offers advice on how HR professionals can meet the new requirements.

On September 8, 2016 the Occupational Health and Safety Act (OHSA) will be amended to bolster an employer’s obligations with respect to harassment prevention generally, and sexual harassment specifically. I blogged about these looming changes when the proposed Bill 132 passed first reading in late October of 2015. The Bill formed part of Premier Wynn’s plan to end sexual violence and harassment in our communities and workplaces. Bill 132 received royal assent on March 8, 2016 and provided employers a 6-month period to prepare for the changes, a period that is quickly coming to an end.

As of September 8, 2016 the following amendments to the OHSA will come into force:
  • The definition of “workplace harassment” will be expanded to specifically include “workplace sexual harassment”. A definition of “workplace sexual harassment” will be added to section 1(1) and include the following:
    1. 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
    2. 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 requirement to develop and maintain a program to implement the workplace harassment policy must be done in consultation with the joint health and safety committee or health and safety representative
  • Measures and procedures for the reporting of workplace harassment when the employer or a supervisor is the alleged harasser
  • How sensitive information such as identifying information of the individuals involved will be handled so that it is not disclosed unless necessary to the investigation, corrective action, or as required by law
  • Describe how the results of an investigation will be shared with the complainant and alleged harasser

In addition to the above program requirements, Bill 132 imposes a general duty for employers to protect workers from workplace harassment and the following specific duties to achieve that end:
  • Conduct investigations into incident and complaints of workplace harassment
  • Inform the complainant and alleged harasser of the results of an investigation and any corrective action taken; and
  • Review the workplace harassment program as often as necessary but at least once per annum.

The addition of workplace sexual harassment into the OHSA provides employers some insight into the type of behaviour that the Ministry of Labour will be concerned with when enforcing the new provisions. An exception to harassment for reasonable actions to manage and/or direct workers will also be added to the definitions section of the OHSA.

This amendment will require the employer to involve worker representatives when crafting their plan to prevent and respond to workplace harassment.

The requirement to conduct an investigation is tempered by the phrase “appropriate in the circumstances”, meaning that employers have the discretion to conduct an investigation commensurate with the allegations and circumstances. However the final amendment provides the Ministry of Labour with the ultimate check and balance regarding what is appropriate. Bill 132 grants Ministry of Labour inspectors the power to compel an investigation by an impartial third party. An investigation compelled by an inspector, and the subsequent report, will be at the expense of the employer.

The changes to the OHSA will require every employer to revisit their policy and program with respect to workplace harassment. The lawyers at CCP are experts in the area of occupational health and safety and ensuring that workplace policies are both legislatively sound and work for your business. Click here for a list of lawyers who can assist you with drafting or revising these workplace policies.

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