New Brunswick Workplace Anti-Violence & Harassment Obligations Effective April 1, 2019
February 27, 2019
By Lucie LaBoissonnière, Lawyer at McInnes Cooper,
Dominique Fontaine, Lawyer at McInnes Cooper
As of April 1, 2019, employers of New Brunswick employees must comply with new occupational health and safety law requirements specific to workplace violence and harassment. The new requirements make it clear that workplace violence and harassment is no joking matter: employers face new obligations to assess and mitigate the risks of workplace violence and harassment – and liability exposure under occupational health and safety laws for failing to do so. The obligations are new for many employers, and it’ll take time for all to become familiar and comply with them. And that time is running out.
New Brunswick is the only Canadian province or territory with no occupational health and safety regulatory scheme dealing specifically with workplace violence and harassment. In April (the month of Canada’s National Day of Mourning) 2018, the provincial government proposed amendments to the existing General Regulation under the N.B. Occupational Health and Safety Act to add new Regulations specific to workplace violence and harassment. Initially intended to take effect on September 1, 2018, the government subsequently delayed the effective date to April 1, 2019 to give employers time to take the necessary steps to comply.
Employers will have to wait to see just how WorkSafe NB (a Crown corporation with oversight over implementing and applying N.B.’s health and safety regulatory regime) or courts will interpret and apply the obligations under N.B.’s new regulations. But the experience in other provinces and territories is a good indicator: they will treat them very seriously – and so should employers. One of the first decisions (Kingston (City) v. C.U.P.E., Local 109 offers insight. That case dealt with a 2011 grievance arbitration involving death threats uttered by one employee to another) considering the then-new analogous Ontario provisions (Bill 168). The arbitrator concluded that employers’, supervisors’ and workers’ hazard protection and reporting obligations now “extend[s] beyond ensuring safety from hazardous substances and dangerous machinery and equipment … to mean that an employer must protect a worker from a hazardous person in the workplace…”. The arbitrator continued to emphasize that employers’ passivity or indifference to any workplace violence report breaches its obligations under the (Ontario) Occupational Health and Safety Act – and exposes it to the Act’s penalties and offences. And we’d add, that’s not all. Here are the liability risks of non-compliance in the New Brunswick context:
Occupational Health & Safety Act Charges. Occupational health and safety laws apply to virtually every employer, regardless of its business structure or whether it’s provincially or federally regulated. OHS laws generally impose the obligation on multiple parties – companies, directors, officers, managers, supervisors and workers – to take every reasonable precaution in the circumstances to ensure the safety of its workers (and anyone else who is in the workplace). “Due diligence” is a legal defence to many charges under occupational health and safety laws – but it’s only available if you can prove it. Most people know that a company has OHS obligations and risks corporate liability for violating them; but the company’s directors, officers and supervisors share many of those OHS obligations – and liability risks. The N.B. Occupational Health and Safety Act expressly states that where a corporation is convicted of an offence under it, “any officer, director, manager or agent” of the corporation who knowingly directed, authorized, assented to, acquiesced or participated in the commission of the offence is a party to the offence.
- Fines. The N.B. Act authorizes the imposition of a fine of up to $250,000 for violating or not complying with the Act or any of its regulations.
- Jail Time. The N.B. Act also authorizes imposition of a term of imprisonment up to six months instead of – or in addition to – a fine.
Criminal Code of Canada Charges. Section 217.1 of the Criminal Code of Canada (the so-called “Westray” provision) imposes a legal duty on everyone who directs or has the authority to direct how another person does work or a task to take reasonable steps to prevent bodily harm to that or any other person arising from that work or task.
- Fines. The Criminal Code authorizes a court to impose a fine – with no set limit on the amount – on both organizations and individuals who violate section 217.1.
- Jail Time. The Criminal Code also authorizes a court to sentence individuals who violate section 217.1 to jail time, with no set limit on the term: the sentence can be up to life imprisonment for criminal negligence causing death.
5 New Anti-Violence & Harassment Obligations
The changes impose five key new – mandatory – obligations on employers of N.B. employees. In fulfilling these new obligations, employers must remain cognizant of the new Regulations’ express privacy protections:
- Employers must not disclose either the identity of a person involved in, or the circumstances related to, a violence or harassment incident except when it’s required to investigate the incident on a need-to-know basis, to take corrective measures in response or by law.
- Employers must limit the personal information they collect, use or disclose throughout – from assessment through to implementation and training – to the minimum amount necessary to accomplish the purpose.
1. Assessment of Risk of Violence
Every employer – regardless of the number of (N.B.) employees it has, must undertake an assessment of the risk of violence at the place of employment. WorkSafe NB hasn’t published a sample form to guide employers in conducting the required violence risk assessment to date, although other provinces have done so (see, for example, the sample form of violence risk assessment published by the Nova Scotia government). While sample forms are of assistance, however, it’s important that employers remember that any such form can only be a guide; the risks, and thus the assessment, will be dependent on each place of employment.
Key definitions. Understanding the scope of this obligation requires understanding some key definitions, found in one of the new Regulations, the existing General Regulation, or in the Occupational Health and Safety Act itself:
- “Employer”. The Act broadly defines “employer” as: a person who employs one or more employees; a manager, superintendent, supervisor, overseer or any person having authority over an employee; and an agent of any such employer.
- “Employee”. The Act also broadly defines “employee” as a person: employed at or in a place of employment; or at or in a place of employment for any purpose in connection with it.
- “Violence”. The new Regulations add this definition of “violence”: in a place of employment, it’s the attempted or actual use of physical force against an employee or any threatening statement or behaviour that gives an employee reasonable cause to believe physical force will be used against them, and includes sexual violence, intimate partner violence and domestic violence (which, according to the World Health Organization (WHO), is broader).
- “Place of Employment”. The Act defines “place of employment” as: any building, structure, premises, water or land where work is carried on by one or more employees; and including a project site (which the Act also defines as, essentially, a construction site), a mine (which it also defines), a ferry, a train and any vehicle an employee uses or is likely to use. Thus, it’s defined in physical terms. The question arises whether the new Regulations encompass “violence” that occurs outside of the four corners of the physical “place of employment”, such as between co-workers after-hours and off-premises or on-line. It’s not entirely clear yet. But even if it’s not, there’s a growing body of court and arbitration decisions supporting the principle that where there’s a nexus with the workplace, the (mis)conduct falls within the employer’s purview – so the employer’s failure to act and to do so appropriately could still expose it to liability, even if not under the new Regulations.
Consultation, Documentation & Access. The employer must assess the risk of violence in consultation with all of its committees and its health and safety representatives, or its employees if there aren’t any such representatives. It must also document the violence risk assessment and make it available to all committees and to all its health and safety representatives.
Specific Assessment Considerations. The employer must consider specific factors when conducting its violence risk assessment:
- The location and circumstances in which the work is carried on. This can include considerations such as
- The nature of the workplace. For example, whether it’s a building, a construction site, a vehicle, or a forest. This can also include factors like the workplace lighting, sight lines, depth of counters, entrances, exits and objects that could be used to hurt workers.
- The type of work. Consider, for example, the activities the workers perform, the sector of work and people with whom workers interact (such as customers, clients or patients)
- The conditions of work. Consider other aspects, such as the hours worked, the surrounding neighborhood, and whether workers move from location to location, work alone, or work in an isolated locale.
- The risk that may arise out of or in connection with the employee’s work, or sexual violence, intimate partner violence or domestic violence at the place of employment.
- Categories of employees at risk or the type of work that puts them at risk. There are a number of particular activities or circumstances that are generally recognized as increasing the risk of workplace violence, including:
- Handling cash.
- Protecting or securing valuables.
- Transporting people and goods.
- A mobile workplace (such as a vehicle).
- Public or community contact.
- Working with unstable or volatile people.
- Working alone or with just a few people.
- Working late nights or very early mornings.
- The possible effect on the health or safety of employees who are exposed to violence. This may be intended to go beyond assessing the risks of actual violence, and may extend to the risks of “mere” exposure to such violence.
- All previous incidents of violence at the place of employment. This requires the employer to look at its own history of violence in its own workplace.
- Incidents of violence in similar places of employment. Even if there’s never been a violence incident at the employer’s particular workplace, the employer still needs to look at places of employment similar to their own, with which it might share risks of workplace violence. For example, the risk of violence is likely higher in certain sectors such as health care, social services, retail, hospitality, education, transportation, police, security and correctional facilities.
2. Establishing a Code of Practice for Violence
After the employer has identified violence risks, it must establish a Code of Practice for Violence that mitigates the risk of violence at the place of employment, ensures the health and safety of employees to the extent possible, and considers any risk of violence identified in the assessment. The Violence Code is effectively an employer policy. If the employer already has an existing workplace violence policy, this might be a useful starting point – but it’s critical to audit and, if necessary, revise that existing policy to ensure it fully complies with the new Regulations.
- Employers with 20 or more employees. All such employers must establish a written Code of Practice for Violence.
- Employers with less than 20 employees regularly employed at one or more places of employment in N.B. These employers must still establish a written Code of Practice for Violence in the specific circumstances set out in the new Regulations. These include where the violence risk assessment identifies a risk of violence, as well as in the context of what’s traditionally considered higher risk employment by reference to the nature of the: specific workers (for example, health professionals); type of work (for example, retail sales); or place of employment (for example, casinos).
Consultation. Employers must establish and implement the Violence Code in consultation with all committees and health and safety representatives, or with employees if there aren’t any committees.
Specific Code Contents. The Violence Code must include:
- Inventory. An inventory of the locations at which and circumstances in which: violence might reasonably be expected to occur; and the Violence Code would apply.
- Types. A description of the types of violence that might reasonably be expected to occur.
- Employees. A description of the categories of employees at risk or of the types of work that place employees at risk of experiencing violence.
- Implementation. The identity of the person responsible for implementing the Violence Code.
- Reporting. A statement requiring employees to report an incident of violence to the employer as soon as the circumstances permit.
- Mitigation. The actions and measures the employer will take to mitigate the risk of violence, including:
- The methods and equipment it will use and the procedures it will follow.
- The follow-up measures it will use with affected employees.
- The means (and alternative means) by which an employee can secure emergency assistance.
- The procedure the employer will follow to investigate and document any incident of violence of which it’s aware.
- The manner in which it will inform affected employees of the investigation results.
- The procedure it will follow to implement any corrective measures the investigation identifies.
- The identification of training needs.
Privacy. Although the new Regulations don’t require either the Violence Code to expressly include the overall privacy protections, employers are well-advised to at least consider incorporating appropriate privacy statements and protection measures into the Violence Code, particularly the investigation, documentation and communication procedures.
3. Establishing a Code of Practice for Harassment
All employers, regardless of size, must establish a Code of Practice for Harassment that ensures the health and safety of employees to the extent possible. The Harassment Code is also effectively an employer policy, so an existing workplace harassment policy can be a starting point but will require an audit and, if necessary, revision, to ensure it fully complies with the new Regulations.
Key Definitions. Again, understanding the scope of this obligation requires understanding key definitions:
- “Harassment”. The new Regulations add a definition of “harassment”: in a place of employment, it’s any objectionable or offensive behavior that’s known or ought reasonably to be known to be unwelcome, including bullying or any other conduct, comment or display; made on either a one-time or repeated basis; that threatens the health or safety of an employee. It expressly includes sexual harassment – but it expressly excludes “reasonable conduct” of an employer respecting the management and direction of employees at the place of employment. This definition is reasonably consistent with the way in which courts and arbitrators have defined harassing conduct generally, and in laws specifically. This includes the general approach that one-time conduct rarely amounts to harassment unless it’s significant enough to, in the words of the new Regulations, threaten an employee’s health or safety. It’s also of note that human rights laws have been interpreted to prohibit harassment based on any of the personal characteristics they specifically protect (for example race, religion, and so on). The new Regulations thus mean that employers that don’t appropriately deal with harassment based on a personal characteristic protected by the N.B. Human Rights Act face potential proceedings and liability under both the Occupational Health and Safety Act and the Human Rights Act – which authorizes a broad range of consequences for breaching employers, including payment of financial compensation to victims.
- “Sexual Harassment”. Driven by the #metoo and #timesup movements, workplace sexual harassment is front and center in employers’ minds. Neither the Regulations nor the Act define “sexual harassment” for this purpose. However, the N.B. Human Rights Act defines it as “engag[ing] in vexatious comment or conduct of a sexual nature that is known or ought reasonably to be known to be unwelcome”, and expressly prohibits sexual harassment in employment. The N.B. Human Rights Act expressly prohibits sexual harassment in employment and, as in the case of harassment based on a protected ground, the new Regulations mean employers that don’t appropriately deal with sexual harassment face potential proceedings and liability under both the Occupational Health and Safety Act and the Human Rights Act.
- “Place of employment”. The same questions about whether or how the new Regulations apply to “harassment” that occurs off-site, off-duty, and/or on-line arise as in the context of “violence”. And the answer is, essentially, the same: it’s not entirely clear yet, but even if not, decisions support the principle that where there’s a nexus with the workplace, the (mis)conduct falls within the employer’s purview and the employer’s failure to take appropriate action could still expose it to liability, even if not under the new Regulations.
Consultation. The employer must establish and implement the Harassment Code in consultation with all committees, health and safety representatives (or employees if there are none).
Specific Code Contents. The Harassment Code must include:
- Harassment-free workplace. A statement that every employee is entitled to work free of harassment.
- Implementation. The person responsible to implement the Harassment Code.
- Reporting. A statement requiring employees to report a harassment incident to the employer as soon as the circumstances permit.
- Investigation. The employer’s procedure to investigate and document any harassment incident.
- Communication. How the employer will inform affected employees of the investigation results.
- Corrective measures. The employer’s procedure to implement any corrective measures the investigation identifies.
- Follow-up. The follow-up measures the employer will use with affected employees.
- Training. The identification of training needs. Privacy. Employers are well-advised to consider incorporating appropriate privacy statements and protection measures into the Harassment Code, particularly the investigation, documentation and communication procedures.
4. Train Supervisors & Employees
The new Regulations require employers to ensure the Violence Code and the Harassment Code are implemented and followed at the place of employment, and require employees to follow both. The Codes are essentially employer policies – and training is a crucial step in effectively implementing any workplace policy, but it’s particularly crucial when that policy is new, carries significant obligations and consequences, and is mandated by law, like here.
Training. The new Regulations require the employer to train each “employee” and each “supervisor” responsible for an employee on both Codes. Neither the Act nor the new Regulations detail the steps employer must take to effect this training.
- Content. There’s usually a difference between the training that non-supervisory employees need and that which supervisors need, and the training content and approach should reflect this. Effective training for all employees will clearly describe the Codes, the employer’s expectations, the employees’ responsibilities, the procedures, give concrete examples and set out the consequences of a violation. Supervisors don’t just have to comply with the Codes: as the employer’s feet on the ground, they play a critical role in implementing and enforcing them. Supervisory training sessions should therefore also familiarize supervisors with their roles and responsibilities for enforcement, and the procedures for applying and enforcing the Codes, including investigation procedures when appropriate. Tools that offer opportunities to practice applying and enforcing the Codes will be particularly useful.
- Trainer. The new Regulations don’t specify who must deliver the training. However, the existing Regulations, in the context of the requirement for a “fall-protection code of practice” (that is similarly structured to the Violence Code and the Harassment Code), do require that training be delivered by a “competent person” (at section 50.3(1)), defined in the existing Regulations as: qualified, because of such factors as knowledge, training and experience, to do assigned work in a manner that will ensure the health and safety of persons; knowledgeable about the provisions of the Act and the regulations that apply to the assigned work; and knowledgeable about potential or actual danger to health or safety connected with the assigned work. Based on that and other best practices, consider whether either or both the non-supervisory employee and the supervisor training are most effectively delivered by the employer’s internal resources, or by an external subject-matter expert.
- Format. While a “toolbox” approach covering multiple policies in the same session is sometimes sufficient, the new Codes and the ramifications of non-compliance warrant stand-alone, specific training, with plenty of explanation and opportunity to ask questions, ideally in-person training and perhaps accompanied by a presentation and/or a handout. If the Codes affect a particular group more than others, consider providing additional training for these “at-risk” groups.
- Training attendance evidence. Circulate attendance or sign-in sheets to all employees who attend the training session.
Code Distribution. The new Regulations require employers to ensure the Violence Code and the Harassment Code are readily available to both an OHS officer, and to employees on request. The training sessions are a perfect opportunity to give every employee a copy of the Codes, either in electronic form, hard copy or both as well as ensure they have easy access to them. And ask each employee to sign and date an acknowledgement stating they received, read and understood the Codes and were afforded an opportunity to ask questions about them.
“Training Record”. The new Regulations require the employer to keep a “training record”. Neither the Act nor the new Regulations detail what a “training record” entails. However, the existing Regulations, in the context of the requirement for a “fall-protection code of practice” (that is similarly structured to the Violence Code and the Harassment Code) do require a “training record” (at section 50.3(2)). Based on that and other best practices, the training record in the context of the new Regulations should be in writing and include:
- The name of the employee who received the training.
- The date on which the training took place.
- The name and credentials (if any) of the person(s) who delivered the training – and their contact details in case you ever need to offer verification.
- A copy of the actual training materials and any related training aids.
- An acknowledgement of training attendance signed by each employee.
- An acknowledgement of receipt of both Codes signed by each employee.
5. Review and Update
Employers must review and update all of the Violence Risk Assessment, the Violence Code and the Harassment Code.
Violence Risk Assessment. The employer must review and update the risk of violence assessment when there’s is a “change in conditions” at the place of employment. The Regulations don’t’ detail what amounts to such a change, but here are some examples of changes that would likely trigger a review and update of the risk assessment:
- The “place of employment” moves, or is renovated or reconfigured.
- The type(s) of work that happen at the place of work changes significantly.
- The working conditions (for example the hours worked, the surrounding neighborhood, a change in travel requirements, working alone or with people) change significantly.
- The employer learns of new information about the risk of workplace violence or harassment.
- There’s a violent incident that indicates a risk related to the nature of the workplace, type of work, or conditions of work that the employer didn’t identify in an earlier assessment.
Codes of Practice. The employer must review each of the Code of Practice for Violence and the Code of Practice for Harassment at least once each year in consultation with committees (or employees, if no committees exist).
Refresher Training. The new Regulations don’t expressly require employers to conduct “refresher training”. But much employee learning takes place only after a policy is in effect and both employees and the employer have had some experience working with it. So the initial training often isn’t enough, and generally, it’s important that employers continuously and regularly train employees, including managers and supervisors, to remind them of important policies and of any changes. And remember: add any refresher training evidence to your training record.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
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