Canada: Anti-Harassment Rule for Federally Regulated Employees Takes Effect in 2021

​The Canadian government will apply new regulations in 2021 to protect employees in federally regulated workplaces from harassment and violence in the workplace.

"Every Canadian has the right to work in a healthy, respectful and safe environment," President of the Treasury Board of Canada Jean-Yves Duclos said in a statement in June 2020. "The government of Canada is committed to ensuring that all federally regulated workplaces—including the public service—are free from harassment and violence of any kind."

Workplace Harassment and Violence Prevention Regulations, released in June 2020, will enable employees and employers to know their rights and duties, Duclos added. The rule will strengthen measures to prevent and address all forms of misconduct in the workplace.

These regulations, which will go into effect Jan. 1, 2021, will incorporate workplace harassment into the Canada Labor Code for the first time, and replace the current definitions of violence and sexual harassment, explained Leslie Frattolin, an attorney with DLA Piper in Toronto.

The updated definition of harassment and violence means: Any action, conduct or comment—including of a sexual nature—that could cause offense, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.

"The new definition addresses workplace harassment more broadly, since the Canada Labor Code previously only defined sexual harassment," said Kyle Lambert, an attorney with McMillan in Ottawa, Ontario. "The existing regime left open the question as to what kind of nonsexual conduct amounted to workplace harassment; this definition resolves that question to a degree."

The incorporation of psychological injury or illness into the definition is new, added Hilary Page, a lawyer at SpringLaw in Toronto. "The definition "now makes explicit the employer's obligation to protect workers from psychological—and not just physical—harm." 

This amendment to the Canada Labor Code applies only to federally regulated workplaces, such as the government, banking, broadcasting and the telecommunications sectors, as well as interprovincial industries like aviation, rail, shipping and trucking.

Around 10 percent of Canada's working population is under federal jurisdiction, according to the Canadian Center for Occupational Health and Safety.

Employer Obligations to Meet by January 2021

Federally regulated employers should review their existing policies, practices and procedures that address both harassment and violence to ensure compliance by Jan. 1, 2021, Lambert noted.

Employment law experts say the workplace policy must include the following:

• A workplace assessment with a policy committee, a workplace committee, or with health and safety representatives to develop and implement preventative measures within six months.
• Identified risk factors that contribute to workplace harassment and violence, including office culture, external circumstances and the physical design of the workplace.
  
• Emergency procedures when an occurrence of workplace harassment or violence poses an immediate danger.
• A workplace harassment and violence prevention policy with reports, records and data to assist the investigator when looking into a complaint.
• A resolution process, including time frames to better support employees and the person or people accused.
• Support measures for employees, including information about medical, psychological and other services available within their geographical area.
• Documentation on how to protect the privacy of people involved, including witnesses, throughout an investigation.
• An annual report about details and types of workplace harassment and violence addressed to the minister of labor. The first annual report is due by March 2021.

"Employers are also required to provide mandatory training on harassment and violence prevention to employees," Lambert said. "The training must be specific to the culture, conditions and activities of the workplace and include training on the employer's policy, and describe how to recognize, minimize, prevent and respond to workplace harassment and violence."

Page stated that new employees at a federally regulated workplace will undergo training within three months of hiring, and again at least every three years.

Training for all covered employees must be completed within the first year of the new law taking effect, she said.

Despite the strides Canadian employers have taken to address movements like #MeToo, Page said employees still face serious barriers in speaking up about workplace harassment and violence.

"Even with legislative protections in place, it can be difficult for employees to continue in a workplace where they've been harassed and have complained about it," she added.

Approximately 19 percent of women and 13 percent of men reported that they have experienced harassment in their workplace in Canada, according to a 2018 report from Statistics Canada.

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HR Must Be Proactive

Employment law experts say employers and human resources managers in federally regulated sectors now need to be proactive when it comes to instances of workplace harassment and violence.

Page said HR will be a part of the process in creating the workplace assessment and developing preventative measures for federally regulated workplaces. The new regulations could be helpful to HR departments in putting together the paperwork, she added.

Lambert said employers and HR's key obligations should be ongoing oversight and responding to individual complaints.

"HR will need to work cohesively with the applicable policy committee, workplace committee or representative to ensure that these new obligations are carried out," he said. "Employers and HR should ensure that employees are given a sufficient opportunity to understand new workplace policies, assessments and training."

After Jan. 1, 2021, employers and HR are responsible to write detailed reports upon receiving an allegation of workplace harassment or violence.

"HR will need to be aware of each required investigation or resolution step and the timelines associated with those steps," Lambert said. "An employer must respond to a complaint within seven days with a proposed process for resolving the complaint. From there, HR will likely play a key role in attempting to resolve a complaint."

HR's ability to facilitate resolutions to harassment or violence complaints in a prompt manner will be valuable, Lambert concluded.

Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.