P.E.I. Workplace Harassment Prevention Obligations: 5 Key Regulatory Changes July 1, 2020
November 3, 2020
By Sean Corcoran, Lawyer at McInnes Cooper
For some time, every Prince Edward Island employer has been required to comply with occupational health and safety obligations respecting workplace violence. But as of July 1, 2020, when changes to the P.E.I. Occupational Health and Safety Act (OSA) and the new Workplace Harassment Regulations took effect, P.E.I. employers must now comply with additional obligations respecting workplace harassment. The P.E.I. changes reflect the trend to expand occupational health and safety schemes beyond workplace violence to include workplace harassment in light of the workplace realities of bullying and harassment. Recent examples include New Brunswick’s workplace anti-violence and harassment regulations (effective April 1, 2019) and changes to Newfoundland & Labrador’s workplace violence and harassment prevention obligations (effective January 1, 2020).
Employers must understand the new requirements and create or review and revise their violence and harassment prevention plan and processes. There are significant liability risks for non-compliance under the Occupational Health & Safety Act or the Criminal Code, including corporate fines, personal fines, and even jail time. Here are five key changes to the P.E.I. occupational health and safety regime to address workplace harassment that took effect July 1, 2020.
1. Protection Against “Psychological” Risks & Harassment
Previously, the OSA protected workers from risks only to their physical well-being arising from or connected with their workplace activities, and there was no definition of “harassment”. The changes expand the protection of workers to include psychological risks – including from harassment.
Express Purpose. As of July 1, 2020, the express purpose of the OSA was expanded to include protection of workers from risks to their psychological well-being as well as their physical well-being.
“Harassment” Definition. This expanded purpose is reflected in a definition of “harassment” in the new Regulations. The Regulations define “harassment” as any inappropriate conduct, comment, display, action or gesture or any bullying that the person responsible knows, or ought reasonably to know, could have a harmful effect on a worker’s psychological or physical health or safety. While the definition expressly excludes a reasonable action taken by an employer or supervisor relating to the management and direction of the workers or of the workplace, it expressly includes:
- Discriminatory harassment. Conduct based on any personal characteristic such as, but not limited to, race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, gender identity or pregnancy. These characteristics closely align with those protected under the E.I. Human Rights Act, ensuring harassment on any discriminatory grounds are covered.
- Sexual harassment. Inappropriate sexual conduct that is known, or ought reasonably to be known, to the person responsible for the conduct to be unwelcome, including, but not limited to, sexual solicitations or advances, sexually suggestive remarks, jokes or gestures, circulating or sharing inappropriate images, or unwanted physical contact. The express inclusion of workplace sexual harassment is meaningful given the increased incidence of workplace sexual harassment claims over the last several years, particularly in the wake of the #MeToo movement, and the significant liability risks to employers.
- Single & repeated. Both single and repeated occurrences of inappropriate conduct, comments, displays, actions, gestures or incidents of bullying that have a harmful effect on the worker’s psychological or physical health or safety.
Overarching Employer Duty. The new Regulations expressly require an employer that either knows, or that ought reasonably to know, that harassment in the workplace is occurring to ensure that both the source of the harassment is identified and the harassment stopped. They also require that reasonable steps are taken to remedy the effects of the harassment and to prevent or minimize future incidents of harassment. Changes to the OSA also make it clear that this duty falls squarely on the employer, for example by excluding workplace harassment from:
- The duty of the joint occupational health and safety committee and the occupational health and safety representative to receive, investigate and deal with occupational health and safety issues and to participate in inspections, inquiries and investigations respecting the workplace occupational health and safety of workers.
- The general obligation of a worker to report a workplace danger to the committee or representative.
2. Proactive Harassment Prevention
Employers’ obligations in relation to violence under the OSA are reactive, existing only where a violence risk assessment identified risks. However, employers’ obligations in relation to harassment prevention are proactive, existing regardless of whether there is a harassment incident. The OSA changes impose a duty on employers to establish and implement, as a policy per the Regulations, measures to prevent and investigate workplace harassment incidents.
Written Policy. To this end, the Regulations require an employer, in consultation with any occupational health and safety committee or representative to develop and implement a written policy to prevent and investigate harassment in the workplace, and to make a copy of that harassment policy readily available to workers.
Mandatory Contents. Employers are wise to ensure that any workplace harassment policy is effectively drafted and implemented. In addition, however, it’s critical to draft a new policy to include, or to review and if necessary revise any existing policy to ensure it includes, the mandatory elements the Regulations require:
- Definition. A definition of “harassment” consistent with that in the Regulations.
- Employer commitment. Commitments that the employer will:
- Ensure, as far as is reasonably practicable, that no worker will be subjected to harassment in the workplace.
- Take corrective action respecting any person under the employer’s direction who subjects a worker to harassment. Notably, this is broader than merely any employee of that employer, and could extend to others, such as contractors. In turn, this means employers are wise to take steps to apprise contractors or other non-employees under their direction in the workplace of their workplace harassment policy and consider contractually binding them to comply with it.
- Confirmatory statements. Statements that:
- Every worker is entitled to work free of harassment.
- The employer will not disclose any identifying information about any person (again, broader than the parties or any employee) involved or the circumstances relating to the complaint to any person unless it’s necessary for the purposes of investigating the complaint, taking corrective action with respect to the complaint, or permitted by law.
- The employer’s harassment policy is not intended to discourage, prevent or preclude a complainant from exercising other legal rights under any other law. Importantly, this could include, for example, civil or criminal action for sexual harassment.
- The employer’s harassment policy does not preclude a worker from filing a complaint under the E.I. Human Rights Act.
- The employer will not reprimand, seek reprisal or discriminate against a worker who has made a workplace harassment complaint in good faith.
- Complaint procedure. Information or procedures about how:
- To make a harassment complaint to the employer or supervisor, or to another person if the employer or supervisor is a subject of the complaint.
- A harassment complaint will be investigated.
- The complainant and subject of the complaint will be informed of the investigation results and any corrective action that was or will be taken as a result.
Teeth. The Regulations also give occupational health and safety officers specific powers to enforce the new anti-harassment obligations, over and above any other enforcement powers of officers under the OSA. In particular, the Regulations give an occupational health and safety officer authority to order, in accordance with their powers to order compliance under the OSA, an employer to comply with the OSA or the Regulations if they have reason to believe an employer has or has not done any of the following:
- Has not established a written policy on workplace harassment that meets the Regulations’ requirements.
- Has established a harassment policy that is inconsistent with the OSA or the Regulations.
- Failed to follow the harassment policy in responding to a workplace harassment complaint.
- Failed to take reasonable steps to resolve a workplace harassment complaint.
- Has contravened the OSA or the Regulations with respect to the prevention or investigation of workplace harassment.
3. Harassment Investigation
Proper workplace investigations are critical in many cases, including in that of workplace harassment. The new Regulations also impose an express obligation on employers to ensure an investigation appropriate to the circumstances is conducted into a complaint of harassment in the workplace. This obligation is in addition to the Regulations’ overarching requirement that an employer that knows or ought reasonably to know that workplace harassment is occurring to ensure that both the source of the harassment is identified and stopped, and reasonable steps are taken to remedy its effects and to prevent or minimize future harassment incidents.
Impartial Investigator. To that end, the Regulations permit an employer to refer the investigation to an impartial person, either within or outside the workplace, who:
- Is not directly involved in the incident or the complaint.
- Is not directly under the control of the person who is the subject of the complaint or otherwise in a conflict of interest.
- Has knowledge of the OSA workplace harassment provisions, regulations and other applicable laws.
Investigator Actions. If the employer does so, that investigator must make a determination of whether workplace harassment occurred, and may (not must) make recommendations to the employer respecting corrective action. After considering any recommendations made by the impartial investigator, the employer is responsible to determine the corrective action required in the circumstances and implement it.
Teeth. The Regulations also provide enforcement mechanisms specific to harassment investigations. These powers offer employers an incentive to comply with their harassment investigation obligations, and thereby retain some control over both the process and the costs. Under the Regulations, an occupational health and safety officer has authority to order an employer:
- To cause a harassment complaint investigation to be conducted by an impartial person with the knowledge, experience or other qualifications acceptable to the officer – at the employer’s expense.
- Where an impartial investigator has determined that harassment occurred in the workplace, and the employer has failed to determine the required corrective action or take the necessary steps to implement the corrective action, to take the steps the officer considers necessary to remedy the harassment and prevent further occurrences.
4. Worker Compliance
The new regime also imposes workplace harassment compliance obligations on workers.
Policy Compliance. Changes to the OSA require workers to comply not only with the OSA and its regulations (including the new Workplace Harassment Regulations), but also with any policy or program an employer establishes under the OSA or its regulations – which includes the (mandatory) employer workplace harassment policy.
Investigation Cooperation. The Regulations expressly impose an obligation on workers to cooperate in the investigation of a workplace harassment complaint. This obligation will be of assistance to employers dealing with uncooperative employees, a common issue in harassment investigations.
Confidentiality. The Regulations also require workers to keep the details of a harassment complaint confidential unless, and to the extent that, disclosure is necessary to report the incident of harassment or to cooperate in the complaint investigation.
5. Privacy Protection
In addition to the specific obligations on employers and workers to keep a harassment complaint confidential except for limited purposes, changes to the OSA also include provisions that help protect the privacy of all involved in a workplace harassment complaint.
Orders. The obligation of officers who issue an order to post a copy of it at the workplace doesn’t apply to an order in relation to a workplace harassment incident that contains individually identifying information about a worker or other person in the workplace, or other “personal information” (as defined in the P.E.I. Freedom of Information and Protection of Privacy Act) about a worker or other person in the workplace.
Reports. The results of a workplace harassment investigation are excluded from the more general obligation to maintain reports of occupational health and safety investigations and to making those reports available those entitled to receive them under the OSA.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Law 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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