Work Place Harassment and Violence Prevention Regulations

Work Place Harassment and Violence Prevention Regulations Whereas, pursuant to subsection 157(3)a of the Canada Labour Codeb, regulations of the Governor in Council under subsection 157(1)c of that Act are to be made in respect of occupational safety and health of employees employed on ships, trains or aircraft, while in operation, on the recommendation of the Minister of Labour and the Minister of Transport and are to be made in respect of occupational safety and health of employees employed on or in connection with exploration or drilling for or the production, conservation, processing or transportation of oil or gas in “frontier lands”, as defined in the Canada Petroleum Resources Actd, on the recommendation of the Minister of Labour, the Minister of Indigenous Services and the Minister of Natural Resources, the latter taking into consideration any recommendations made by the Canadian Energy Regulator in relation to the regulations; S.C. 2019, c. 29, par. 375(1)(c) R.S., c. L-2 S.C. 2018, c. 22, s. 14 R.S., c. 36 (2nd Supp.) And whereas the Canadian Energy Regulator has not made any recommendation in relation to the annexed Regulations; Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, the Minister of Transport, the Minister of Indigenous Services and the Minister of Natural Resources, pursuant to subsections 125(3)e and 157(1)c of the Canada Labour Codeb, makes the annexed Work Place Harassment and Violence Prevention Regulations. S.C. 2018, c. 22, s. 3(4) Definitions The following definitions apply in these Regulations. Act means Part II of the Canada Labour Code. (Loi) designated recipient means a work unit in a work place or person that is designated by an employer under section 14. (destinataire désigné) occurrence means an occurrence of harassment and violence in the work place. (incident) principal party means an employee or employer who is the object of an occurrence. (partie principale) responding party means the person who is alleged to have been responsible for the occurrence in notice of an occurrence provided under subsection 15(1). (partie intimée) witness means a person who witnessed an occurrence or is informed of an occurrence by the principal party or responding party. (témoin) Applicable Partner In these Regulations, a reference to the “applicable partner” is to be read as a reference to the policy committee or, if there is no policy committee, as a reference to the work place committee or the health and safety representative. When unable to agree If an employer and the policy committee, the work place committee or the health and safety representative are unable to agree on any matter that is required by these Regulations to be done jointly by them, the employer’s decision prevails. Prescribed circumstances — extension The Head of Compliance and Enforcement may extend the time period referred to in subsection 125(4) of the Act if a former employee demonstrates in an application to the Head of Compliance and Enforcement that they were unable to make the occurrence known to the employer within the time period because they incurred trauma as a result of the occurrence or because of a health condition. Time period to make complaint For the purpose of subsection 127.1(12) of the Act, a former employee may make a complaint under subsection 127.1(1) of the Act until the day that is the later of three months after the day on which the former employee ceases to be employed by the employer, and if notice of the occurrence was provided under subsection 15(1), three months after the day on which the resolution process is completed in respect of the occurrence. Joint assessment An employer and the applicable partner must jointly carry out a work place assessment that consists of the identification of risk factors under section 8 and the development and implementation of preventive measures under section 9. Joint monitoring and updates An employer and the applicable partner must jointly monitor the accuracy of the work place assessment and, if necessary, update it in order to reflect a change to the information set out in the assessment, including a change to the risk factors identified under section 8; and a change that compromises the effectiveness of a preventive measure developed and implemented under section 9. Review after three years An employer and the applicable partner must jointly review the work place assessment every three years and, if necessary, update it. Joint review and update An employer and the work place committee or the health and safety representative must jointly review and, if necessary, update the work place assessment if notice of an occurrence is provided under subsection 15(1) and the occurrence is not resolved under section 23 and the principal party ends the resolution process under section 18; or the responding party is not an employee or the employer. Review to consider circumstances A review conducted under subsection (1) must take into account the circumstances of the occurrence. Multiple occurrences If a review and update are being conducted under subsection (1) and notice is provided under subsection 15(1) of another occurrence that involves substantially the same matters and for which a review and update are also required under subsection (1), those occurrences may be addressed together in the same review and update. Qualifications An employer must ensure that each individual who is directed by the employer to identify the risk factors referred to in section 8, or to develop and implement the preventive measures referred to in section 9, is qualified to do so by virtue of their training, education or experience. Identification of risk factors An employer and the applicable partner must jointly identify the risk factors, internal and external to the work place, that contribute to harassment and violence in the work place, taking into account the culture, conditions, activities and organizational structure of the work place; circumstances external to the work place, such as family violence, that could give rise to harassment and violence in the work place; any reports, records and data that are related to harassment and violence in the work place; the physical design of the work place; and the measures that are in place to protect psychological health and safety in the work place. Preventive measures — development and implementation Within six months after the risk factors are identified under section 8, an employer and the applicable partner must jointly develop preventive measures that, to the extent feasible, mitigate the risk of harassment and violence in the work place, and neither create nor increase the risk of harassment and violence in the work place; develop an implementation plan for the preventive measures; and implement the preventive measures in accordance with the implementation plan. Joint development An employer and the applicable partner must jointly develop a work place harassment and violence prevention policy. Policy content The policy must contain the following elements: the employer’s mission statement regarding the prevention of and protection against harassment and violence in the work place; a description of the respective roles of the employer, designated recipient, employees, policy committee, work place committee and health and safety representative in relation to harassment and violence in the work place; a description of the risk factors, internal and external to the work place, that contribute to work place harassment and violence; a summary of the training that will be provided regarding work place harassment and violence; a summary of the resolution process, including the name or identity of the designated recipient, and the manner in which a principal party or witness may provide the employer or the designated recipient with notice of an occurrence; the reasons for which a review and update of the work place assessment must be conducted under subsection 6(1); a summary of the emergency procedures that must be implemented when an occurrence poses an immediate danger to the health and safety of an employee or when there is a threat of such an occurrence; a description of the manner in which the employer will protect the privacy of persons who are involved in an occurrence or in the resolution process for an occurrence under these Regulations; a description of any recourse, in addition to any under the Act or these Regulations, that may be available to persons who are involved in an occurrence; a description of the support measures that are available to employees; and the name of the person who is designated to receive a complaint made under subsection 127.1(1) of the Act. Policy to be made available An employer must make the policy available to all employees. An employer and the applicable partner must jointly review and, if necessary, update the policy at least once every three years and following any change to an element of the policy. Joint development and implementation An employer and the applicable partner must jointly develop emergency procedures that are to be implemented if an occurrence poses an immediate danger to the health and safety of an employee; or there is a threat of an occurrence referred to in paragraph (a). Procedures available An employer must make the emergency procedures available to all employees. After every implementation of the emergency procedures under subsection (1), an employer and the applicable partner must jointly review and, if necessary, update the procedures. Joint development or identification An employer and the applicable partner must jointly develop or identify the training on work place harassment and violence that is to be provided to employees, the employer and the designated recipient. Required training elements The training must be specific to the culture, conditions and activities of the work place and include the following elements: the elements of the work place harassment and violence prevention policy; a description of the relationship between work place harassment and violence and the prohibited grounds of discrimination set out in subsection 3(1) of the Canadian Human Rights Act; and a description of how to recognize, minimize, prevent and respond to work place harassment and violence. An employer and the applicable partner must jointly review and, if necessary, update the training at least once every three years and following any change to an element of the training. Employee An employer must ensure that an employee is provided with the training within three months after the day on which their employment begins or, in the case of an employee whose employment began before the day on which these Regulations come into force, within one year after the day on which these Regulations come into force; at least once every three years after that; and following any update to the training under subsection (3) or their assignment to a new activity or role for which there is an increased or specific risk of work place harassment and violence. Designated recipient An employer must ensure that the designated recipient is provided with the training before assuming their duties under these Regulations and at least once every three years after that. Employer An employer must undergo the training within one year after the day on which these Regulations come into force and at least once every three years after that. Information available to employees An employer must make available to employees information respecting the medical, psychological or other support services that are available within their geographical area. An employer must designate a person or work unit as the designated recipient to whom notice of an occurrence may be provided. Providing notice Subject to subsections (2) and (3), a principal party or witness may, in writing or orally, provide an employer or the designated recipient with notice of an occurrence. Exception Notice must not be provided in respect of an occurrence if the responding party is neither the employer nor an employee; exposure to harassment and violence is a normal condition of the principal party’s work; and the employer has measures in place to address that work place harassment and violence. Employer is a party If the principal party or the responding party is the employer, the notice must be provided to the designated recipient. Anonymous notice A witness may provide notice of an occurrence anonymously. Content of notice Notice of an occurrence must contain the following information: the name of the principal party and the responding party, if known; the date of the occurrence; and a detailed description of the occurrence. Employer or designated recipient For the purposes of sections 18 to 23, 26, 27, 29 and 34, a reference to “employer or designated recipient” is a reference to the one to whom notice of the occurrence was provided under subsection 15(1). Principal party’s choices The principal party may end the resolution process at any time by informing an employer or designated recipient that they choose not to continue with the process. Initial review An employer or designated recipient must conduct an initial review of every notice of an occurrence. Occurrence deemed to be resolved Following the initial review, the occurrence is deemed to be resolved if the notice does not contain the name of the principal party or otherwise allow their identity to be determined. Contact with principal party An employer or designated recipient must, within seven days after the day on which notice of an occurrence is provided, contact the principal party to inform them that their notice has been received or that they have been named or identified as the principal party in notice provided by a witness, as the case may be; of the manner in which the work place harassment and violence prevention policy is accessed; of each step of the resolution process; and that they may be represented during the resolution process. Contact with witness If notice of an occurrence is provided by a witness who is not anonymous, an employer or designated recipient must, within seven days after the day on which the notice is provided, contact the witness to confirm that notice was received. Contact with responding party On the first occasion that an employer or designated recipient contacts the responding party regarding the occurrence, they must inform them that they have been named or identified as the responding party in the notice of an occurrence; Reasonable effort An employer or designated recipient, the principal party and, if contacted under section 22, the responding party, must make every reasonable effort to resolve an occurrence for which notice is provided under subsection 15(1) and those efforts must begin no later than 45 days after the day on which that notice is provided. However, if the occurrence is also investigated, it cannot be resolved under this section after the investigator has provided their report under subsection 30(1). Review required For the purposes of subsection (1), the reasonable effort includes a review by the principal party and the employer or designated recipient to determine whether the notice of occurrence provided under subsection 15(1) describes an action, conduct or comment that constitutes harassment and violence as defined in subsection 122(1) of the Act. Joint determination — harassment and violence For the purpose of subsection (1), resolution of the occurrence includes, but is not limited to, a joint determination by the principal party and the employer or designated recipient that the notice of occurrence provided under subsection 15(1) does not describe an action, conduct or comment that constitutes harassment and violence as defined in subsection 122(1) of the Act. Conditions The principal party and the responding party may attempt to resolve an occurrence for which notice is provided under subsection 15(1) by conciliation if they agree to conciliation and on a person to facilitate it. However, if the occurrence is also investigated, it cannot be resolved by conciliation after the investigator has provided their report under subsection 30(1). When investigation is required Subject to subsection (2), if an occurrence is not resolved under section 23 or 24, an investigation of the occurrence must be carried out if the principal party requests it. Investigation discontinued If the occurrence being investigated is resolved under section 23 or 24 before the investigator has provided their report under subsection 30(1), the investigation must be discontinued. Notice of investigation An employer or the designated recipient must provide the principal party and the responding party with notice that an investigation is to be carried out. Selection of investigator Subject to subsection (2), an employer or designated recipient must select one of the following persons to act as the investigator: in the case where the employer and the applicable partner have jointly developed or identified a list of persons who may act as an investigator, a person from that list; and in any other case, a person that is agreed to by the employer or designated recipient, the principal party and the responding party, or if there is no agreement within 60 days after the day on which the notice is provided under section 26, a person from among those whom the Canadian Centre for Occupational Health and Safety identifies as having the knowledge, training and experience referred to in subsection 28(1). Limit An employer or designated recipient may select a person to act as the investigator only if the person possesses the knowledge, training and experience referred to in subsection 28(1); and provides the employer or designated recipient, principal party and responding party with a written statement indicating that the person is not in a conflict of interest in respect of the occurrence. Investigator’s qualifications For the purposes of these Regulations, an investigator must be trained in investigative techniques; have knowledge, training and experience that are relevant to harassment and violence in the work place; and have knowledge of the Act, the Canadian Human Rights Act and any other legislation that is relevant to harassment and violence in the work place. Statement of qualifications A person or party referred to in subparagraph 27(1)(b)(i) who proposes that a person act as the investigator must provide the other persons and parties referred to in that subparagraph with the following information about the proposed investigator: their name; if they are an employee of the employer, their job title and the name of their immediate supervisor; a description of their knowledge, training and experience demonstrating that they meet the requirements of subsection (1); and a description of any experience that they have which is relevant to the nature of the occurrence that is to be investigated. Information for investigator An employer or the designated recipient must provide the investigator with all information that is relevant to the investigation. Investigator’s report An investigator’s report regarding an occurrence must set out the following information: a general description of the occurrence; their conclusions, including those related to the circumstances in the work place that contributed to the occurrence; and their recommendations to eliminate or minimize the risk of a similar occurrence. Identity of persons An investigator’s report must not reveal, directly or indirectly, the identity of persons who are involved in an occurrence or the resolution process for an occurrence under these Regulations. Copies of report An employer must provide a copy of the investigator’s report to the principal party, responding party, the work place committee or health and safety representative and, if they were provided with notice under subsection 15(1), the designated recipient. Joint determination An employer and the work place committee or the health and safety representative must jointly determine which of the recommendations set out in the report are to be implemented. Implementation The employer must implement all recommendations that are determined under subsection (1). Completion of process The resolution process for an occurrence is completed when if a work place assessment is required under subsection 6(1), the review and, if necessary, update of the assessment are carried out; the occurrence is resolved under subsection 19(2) or under section 23 or 24; if an investigator has provided a report in accordance with subsection 30(1), the employer implements the recommendations referred to in subsection 31(2). Time limit Subject to subsection (2), an employer must ensure that the resolution process is completed within one year after the day on which notice of the occurrence is provided under subsection 15(1). Temporary absence If the principal party or responding party is temporarily absent from work for more than 90 consecutive days after the day on which notice of the occurrence is provided under subsection 15(1), the employer must ensure that the resolution process is completed within the later of one year after the day on which notice of the occurrence is provided under subsection 15(1), and six months after the day on which the party returns to work. Monthly status updates For every occurrence for which notice is provided under subsection 15(1), an employer or designated recipient must provide monthly updates regarding the status of the resolution process to the principal party, beginning on the first month after the month in which the notice is provided and ending on the month in which the resolution process is completed; and the responding party, beginning on the first month after the month in which the responding party is first contacted by the employer or designated recipient concerning the occurrence and ending on the month in which the resolution process is completed. Records to be kept An employer must keep the following health and safety records: the work place harassment and violence prevention policy; a copy of the documents that form part of the work place assessment; a copy of the documents that form part of each review and update of the work place assessment; for each instance where the employer and the policy committee, the work place committee or the health and safety representative are unable to agree on a matter that is required by these Regulations to be jointly done by them, a record of the employer’s decision in that matter and the reasons for that decision; a record of each notice provided under subsection 15(1) and of each action taken in response to the notice; for each instance where a time limit set out in section 33 is not met, a document that sets out the reason for the delay; a copy of each report that is prepared by an investigator under subsection 30(1); a copy of each annual report; and a copy of each fatality report provided under subsection 37(1). Time period An employer must keep the records referred to in paragraphs (1)(c) to (i) for a period of 10 years. Content On or before March 1 of each year, an employer must provide the Head of Compliance and Enforcement with an annual report that sets out their name or business name; their business number, as defined in subsection 248(1) of the Income Tax Act; the name of a person who can be contacted in respect of the report; and the following information respecting the occurrences for which notice was provided under subsection 15(1) in the preceding calendar year: the total number of occurrences, the number of occurrences that were related, respectively, to sexual harassment and violence and non-sexual harassment and violence, the number of occurrences that resulted in the death of an employee, if known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the Canadian Human Rights Act, the locations where the occurrences took place, specifying the total number of occurrences that took place in each location, the types of professional relationships that existed between the principal and responding parties, specifying the total number for each type, the means set out in section 32 by which resolution processes were completed and, for each of those means, the number of occurrences involved, and the average time, expressed in months, that it took to complete the resolution process for an occurrence. If an occurrence results in the death of an employee, an employer must report the occurrence to the Head of Compliance and Enforcement within 24 hours after becoming aware of the employee’s death. The report must set out the following information: the employer’s name or business name; the employer’s business number, as defined in subsection 248(1) of the Income Tax Act; the date and time of the occurrence; and the name of a person who can be contacted in respect of the report. [Amendments] Sections 20.1, 20.2 and 20.9 of the Canada Occupational Health and Safety Regulations, as they read immediately before the day on which the Work Place Harassment and Violence Prevention Regulations come into force, continue to apply to all “work place violence”, as described in section 20.2 of the Canada Occupational Health and Safety Regulations and alleged work place violence, of which the employer becomes aware before the day on which the Work Place Harassment and Violence Prevention Regulations come into force. Sections 90, 96 and 103 of the Maritime Occupational Health and Safety Regulations, as they read immediately before the day on which the Work Place Harassment and Violence Prevention Regulations come into force, continue to apply to all work place violence, as defined in section 90 of Maritime Occupational Health and Safety Regulations, and alleged work place violence of which the employer becomes aware before the day on which Work Place Harassment and Violence Prevention Regulations come into force. S.C. 2018, c. 22 These Regulations come into force on the day on which sections 0.1 to 16 and 18 of An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, chapter 22 of the Statutes of Canada, 2018, come into force, but if they are registered after that day, they come into force on the day on which they are registered. [Note: Regulations in force January 1, 2021, see SI/2020-45.]