February 27, 2019
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 was the only Canadian province or territory with no occupational health and safety regulatory scheme dealing specifically with workplace violence and harassment. Significant changes to N.L.’s workplace violence and harassment regulatory scheme took effect on January 1, 2020, and to P.E.I.’s scheme on July 1, 2020.
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.
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.
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:
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:
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:
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.
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:
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:
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:
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.
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:
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:
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.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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