OHS & Workers’ Compensation Advisor – June 2016
June 24, 2016
OHSA Bill 132 Amendments: Navigating the Workplace Harassment Sea-Change
Authors: Cheryl A. Edwards and Jeremy Warning, Partners, and Krista Antonio, Student, Mathews, Dinsdale & Clark LLP
September 8, 2016, now looms for employers as the date for compliance with recently passed Bill 132 amendments to the Ontario Occupational Health and Safety Act (“OHSA”). The amendments stand to dramatically change how workplace harassment is addressed in Ontario. New OHSA obligations and expectations have been set and are accompanied by expanded government oversight. Harassment in the workplace is already a challenging issue that could engage multiple forums, with complaints possibly being advanced through a grievance, civil claim, complaint under the Human Rights Code, and, depending on the severity of the conduct, the criminal justice system. Now, in addition to these potential forums, the amendments insert an OHSA layer that will apply regardless of the nature of the workplace harassment or the forum(s) in which a complaint is proceeding.
Bill 132 received Royal Assent on March 8, 2016, which triggered the six month compliance deadline for the OHSA amendments. In this Advisor we explore and comment on the changes to the OHSA and tackle some common and thorny implementation issues that represent some of the questions and challenges now facing Ontario employers.
Pending Changes to the OHSA
Bill 132 expands what are currently a relatively narrow set of employer obligations regarding workplace harassment in the OHSA. The key changes arising from Bill 132 include:
- the addition of a definition of “workplace sexual harassment” in the definition of “workplace harassment”;
- a new requirement that the workplace harassment program be developed and maintained in consultation with the Joint Health and Safety Committee or a health and safety representative;
- a new requirement to conduct an investigation that is “appropriate in the circumstances”;
- confidentiality and reporting obligations relating to workplace harassment investigations; and
- a new power to the Ministry of Labour (MOL) to order an independent workplace harassment investigation at the employer’s expense.
(a) New OHSA Definition: Workplace Sexual Harassment
Currently, the OHSA already has an expansive and inclusive definition of “workplace harassment” as it applies to any course of vexatious conduct or comment that is known, or ought reasonably to be known, to be unwelcome. Notwithstanding this very broad definition, one of the most readily apparent changes by Bill 132 is the inclusion of a new term, “workplace sexual harassment”, within the definition of “workplace harassment”. The Bill defines “workplace sexual harassment” as follows:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
The first part of the definition introduces a list of grounds of workplace harassment. The listed grounds mirror language from the Ontario Human Rights Code which sets out a list of protected grounds which are not to be a basis for harassment or discrimination. When workplace harassment provisions were incorporated into the OHSA in 2010, Ontario had chosen not to define “workplace harassment” on the basis of protected grounds, which distinguished Ontario’s provisions from those in jurisdictions like Manitoba and Saskatchewan. Further, Ontario chose not to specifically include behaviours that fall within the concept of sexual harassment. Bill 132 does just that through the second part of the definition of “workplace sexual harassment”.
The significance of including a specific definition of “workplace sexual harassment” is not clear. Indeed, not one of the new obligations or other changes (that will be discussed below) apply specifically to behaviour defined as “workplace sexual harassment”. All of the changes apply to “workplace harassment”. That said, the changes create a specific focus on workplace sexual harassment as a workplace health and safety issue. They add an OHSA layer to the issue of workplace harassment and the process by which it is addressed by employers.
Bill 132 does provide a welcome confirmation for employers of what is not harassment. Specifically, the Bill amends the OHSA to confirm that “workplace harassment” is not reasonable action taken by an employer or supervisor relating to the management and direction of workers. This line drawing is helpful insofar as it makes clear that the legitimate management of the workplace falls outside of the scope of “workplace harassment”.
(b) New Program Requirements
In addition to highlighting workplace sexual harassment as a component of workplace harassment, Bill 132 creates positive duties for employers which is a move away from the present system. Bill 132 mandates that employers develop and maintain a written program to implement the policy in consultation with the health and safety committee or a representative. This program must be reviewed at least once a year and, in addition to providing a means to report incidents or complaints of workplace harassment and setting out how complaint will be investigated and dealt with, employers are required to: address alternate means of reporting complaints of workplace harassment; how confidentiality will be maintained during an investigation; and how the complainant and alleged harasser will be informed of the result of the investigation – including corrective action.
(i) Alternate Reporting Mechanism
One program amendment to the OHSA that could present a challenge for smaller employers is a new requirement that employers provide a means for reporting incidents or complaints of workplace harassment where the complainant’s supervisor or employer is the alleged harasser. This could present a significant compliance challenge for very small employers who may lack sufficient staffing levels to easily provide for an alternate means for workers to report complaints. In such cases, Bill 132 amendments may result in very small businesses requiring the services of a third party to receive – and potentially investigate – the complaint.
(ii) New Confidentiality and Reporting Requirements
Prior to Bill 132, the OHSA did not contain any particular procedural requirements. However, Bill 132 introduces new statutory requirements into the OHSA. One notable change is a requirement that the workplace harassment program provide that information gathered about an incident or complaint of workplace harassment will not be disclosed unless necessary for the investigation or corrective action regarding the incident. Consequently, if not already in place, employers will have to develop mechanisms to ensure that details uncovered during an investigation, including identifying information, are not disseminated other than as permitted.
Although details of an investigation are to be treated confidentially, Bill 132 also establishes an obligation to set out how results of an investigation and any corrective action are to be communicated to the victim and the alleged perpetrator, if he or she is a worker employed by the employer. To complicate matters, neither “results” nor “corrective action” are defined to provide guidance on what they include or do not include. Therefore, unless and until some guidance material is published by the Ministry of Labour (“MOL”), employers will have the responsibility to balance these new confidentiality and reporting obligations.
(iii) Investigation: “Appropriate in the Circumstances”
In addition, and notably, the Bill amends the OHSA to require an employer to conduct an investigation of a workplace harassment complaint that is “appropriate in the circumstances”. The phrase “appropriate in the circumstances” is not defined. Further, the MOL has not published any guidance material to communicate what factors will be considered by inspectors when determining whether an investigation meets this standard. We assume that the inspectors could be evaluating investigations against expected best practices which would include such things as an impartial investigator, collection of all relevant information, and procedural fairness to the alleged harasser. This could create challenges for employers as the appropriateness of an investigation may be evaluated in hindsight.
(c) Expanded Powers for MOL Inspectors to Order Investigation
In addition to providing new obligations and duties for employers, Bill 132 grants an additional power to MOL inspectors. The Bill provides inspectors with the power to order that an employer engage a third party to conduct an investigation of a workplace harassment complaint. The third party would be engaged at the employer’s expense and would have to prepare a written report regarding his or her investigation. Importantly, the investigator engaged by the employer will have to have certain characteristics that are defined by the inspector who issued the order.
On its face, Bill 132 does not indicate what circumstances could result in such an order. Presumably, it could arise if the employer has not investigated a complaint but, more troublingly, it appears possible that such an order could issue where an inspector concludes that the completed investigation was not “appropriate in the circumstances”. We expect that MOL inspectors will also exercise their existing powers to order re-investigations and other remedial steps. We discuss that further below.
MOL and OLRB: Adjudicators of the Appropriate Process?
We do not anticipate that the MOL will be investigating the specifics of harassment complaints. After all, Bill 132 specifically obligates the employer to conduct an investigation. However, because the Bill creates duties and obligations for employers regarding workplace harassment investigations, it implicitly provides the MOL, as the OHSA regulator, with oversight. In doing so, the Bill creates an avenue for MOL inspectors to review an employer’s process regarding a workplace harassment investigation. Clearly, the MOL could require an employer to conduct an investigation (whether using internal resources or a third party) into a workplace harassment complaint if the employer has not investigated. However, and potentially more troublingly, it appears that the MOL could direct a new investigation be conducted if it determines that a completed investigation was not “appropriate in the circumstances”. This is troubling for the reasons mentioned above but particularly because it does appear that the MOL could review the process after an employer has acted on its investigation.
In our view, Bill 132 creates the possibility that a complainant or respondent in a workplace harassment complaint could participate in the employer’s investigation but, if not satisfied with the outcome, they or their representative could complain to the MOL and assert that the investigation was not “appropriate in the circumstances”. The upshot of such a complaint would be a review of the investigation process by the MOL and a decision on whether the investigation complied with the OHSA or not. If the investigation is found not to comply with the OHSA, the employer could be ordered to redo the investigation or have it conducted by a third party. Regardless of what the MOL determines about the investigation process, the inspector’s decision (to order a new investigation or not) could be appealed to the Ontario Labour Relations Board (“OLRB”), pursuant to section 61 of the OHSA, by an aggrieved party wishing to press their position that the investigation was compliant or non-compliant as the case may be. Therefore, one of the significant potential consequences of Bill 132 is that employers may continually be called upon to defend their investigation process to the MOL and, if required, before the OLRB. Consequently, employers and their investigators would be well advised to carefully document the investigation process such that detailed information will be available about the process should it be required.
In the authors’ views, these potential consequences demonstrate a clear need for a MOL guidance document, such as a Code of Practice to instruct and set standards for both employers and MOL inspectors on compliance with the OHSA’s investigation requirements. Employers will then be aware of government expectations and there should be consistency in enforcement by MOL inspectors. The It’s Never Okay Action Plan, which was released in March 2015, alluded to a planned OHSA Code of Practice and we remain hopeful that one will issue.
Bill 132: Frequently Asked Implementation Questions
With those comments as a background, we have received a number of implementation questions from employers touching on a number of important issues. We have set out frequent questions we have received along with our response to those questions below.
Question: Our organization has multiple Ontario and national locations, would we be required to consult with all JHSC or would a reasonable representation be sufficient?
Response: Bill 132 amends the OHSA to require that the written program to implement the workplace harassment policy be developed and maintained in consultation with the joint health and safety committee or safety representative, as the case may be. Consultation does not require express approval of all JHSC committees or representatives, but it does involve giving a meaningful opportunity to provide input. We recommend that, if there is an overall policy committee or coordinating health and safety committee, this committee be consulted and each of the other committees be provided an opportunity to comment on the written program and means of implementation. We would note that these are the provisions for Ontario. There are also definitions of workplace harassment and obligations relating to harassment policies and programs in B.C., Manitoba, NWT, and Saskatchewan and those provisions would need to be consulted for compliance as well.
Question 1: What is your recommendation regarding whether employers should have a violence and harassment policy and a respectful workplace policy or combine all 3 into one policy?
Question 2: Do we need to have separate policies for workplace violence/workplace harassment/workplace sexual harassment – or can it be one policy – that is signed by the president and posted on the H&S board at the workplace?
Response to 1 and 2: Because the amended OHSA provisions that take effect on September 8, 2016, provide more detailed provisions pertaining to workplace harassment and investigations of workplace harassment, this will be an important determination for employers who have multiple policies. Unless an employer wishes to exceed the minimum legislative requirements for investigations into workplace violence, because investigations into workplace violence may now be even more clearly differentiated from the requirements for investigations into workplace harassment, employers may wish to have separate workplace violence and investigation policies from those addressing workplace harassment and respectful workplaces. Employers may consider combining workplace harassment and respectful workplace policies and investigations. This, in our view, ought to be considered because workplace harassment investigations may touch on at least some grounds protected under the Human Rights Code (sex, sexual orientation, gender identity or gender expression). The upshot is that OHSA workplace harassment and other general respectful workplace policies or those policies promulgated due to Human Rights Code requirements will be more aligned.
Whether the policies are separated or all combined, the employer must meet the minimum standards of the OHSA for workplace violence policies and investigations, the new workplace harassment provisions for policies and investigations, and must take steps to prevent Human Rights Code violations or harassment.
Question 3: If we are now amending our Workplace Violence & Harassment Policy to include “workplace sexual harassment” would it be wise to also include requirements relating to Domestic & Sexual Violence from Bill 177?
Response: At the time of writing this Advisor, Bill 177 has been ordered for consideration by the Standing Committee on Justice Policy but no Committee proceedings have taken place. It is not at all certain whether the Committee proceedings will result in amendments to the Bill and what those amendments may be. For that reason, we would urge caution in amending existing policies to account for legislative changes that have not yet been made.
Using External Investigator
Question: Any advice for employers who already have a third party ethics reporting mechanism in place with respect to who should review incident reports and how they should determine a threshold for using an outside investigator?
Response: We have some concern about using a third party reporting mechanism because the OHSA currently requires that an employer have a mechanism for reporting incidents or complaints of workplace harassment to the employer or supervisor. As mentioned above, Bill 132 amends the OHSA to require an employer to conduct an investigation that is “appropriate in the circumstances”. The use of a third party reporting mechanism, particularly if it permits the reporting person to remain anonymous, may hinder or frustrate the employer’s ability to investigate a workplace harassment complaint. This may mean that the employer has not been able to conduct an investigation that is appropriate in the circumstances. A third party reporting mechanism may be entirely appropriate for receiving reports on other issues but, given the current and pending OHSA obligations on employers, it may not be appropriate for receiving complaints of workplace harassment. It may, therefore, be preferable to instruct workers that the third party mechanism is not to be used to report such incidents.
As for determining whether to use an external investigator, neither the OHSA nor Bill 132 list a set of circumstances where one should be engaged. It is left to the employer to determine when it would be best to utilize an outside investigator. Knowing that the MOL may evaluate the appropriateness of the investigation for the circumstances, our view is that an employer should consider engaging an external investigator by considering a number of factors. Those factors include the qualifications of available internal investigators severity of the alleged conduct, the implication of senior management in the complaint, the actual and perceived impartiality of available internal investigators, and if there is actual or a significant potential for litigation or publicity regarding the complaint(s).
Questions: Since harassment is a criminal offence, once an internal investigation has been completed and it indicates something may have occurred, would contacting the police to investigate be logical? Would that not be reasonable action and help employers deal with the MOL and/or provide support for meeting the requirements of the OHSA?
Response: There are a number of matters that can arise in the workplace including assault, threats of assault, and stalking that could constitute a Criminal Code offence. Most workplace violence and workplace harassment policies should, in our view, indicate that if any individual feels that they are facing immediate threat of bodily harm, they or the employer should contact the police to investigate the matter. We believe that police should be contacted, if this type of risk exists, long before an internal investigation is commenced.
Even if the matter does not pose an immediate threat or strongly indicate a potential criminal contravention (and that will be for the police to determine, not the complainant or employer), it is our view that the employer or any party involved could consider calling the police to investigate a potential criminal contravention.
We are not of the view, however, that the employer or complainants should call police in order to attempt to meet the amended workplace harassment requirements under the OHSA to protect workers from harassment by conducting an investigation into an incident or complaint that is appropriate in the circumstances. We see those as separate matters because there is nothing in Bill 132 to suggest that a police investigation could excuse an employer from conducting its own investigation. For that reason, we do not believe that calling the police will have the effect of assisting the employer in dealing with the MOL and any determination an inspector may make about the appropriateness of an investigation. The determination to call police should be based solely on the nature of the behaviour involved.
Question 1: Given Bill 132 will be implemented September 2016 are there any pending provision changes to the WSIA?
Response: We are unaware of any Workplace Safety and Insurance Act reporting requirements or compensation-related changes that are planned for September 2016 or in any way related to these Bill 132 amendments to the Ontario OHSA.
Question 2: So if a worker is harassed in the workplace and refuses to return to work because they feel they were psychologically traumatized, would this go through the WSIB as a claim?
Response: The WSIB has been accepting reports of injury and claims for compensation for traumatic mental stress for many years. Many claims for traumatic mental stress arise out of physical or emotional injury that has arisen in the workplace. The WSIB will continue to assess each claim as received. If a claim meets the necessary test, that the injury arose out of or in the course of employment, if it arises out of a sudden and unexpected traumatic event, or even if chronic stress has arisen based upon an accumulation of work-related stressors which appear to be compensable based on more recent case law, the WSIB can grant entitlement. This is a developing area of workers’ compensation law and specific advice should be obtained in relation to whether a particular claim may or may not be compensable.
Questions: If an employee alleges/reports there has been sexual harassment but says he/she doesn’t want to pursue it, just make the employer aware of it “in case”, what are the employer’s obligations? Have they increased now that workplace sexual harassment has been defined separately?
Response: The amended OHSA requires employers to protect workers from workplace harassment as a distinct new duty. That duty requires that investigations be conducted into incidents and complaints, and the investigation must be appropriate in the circumstances. We are of the view that employer obligations to investigate incidents that come to their attention, or of which they reasonably ought to be aware, have increased and it will be problematic for the employer to decline to conduct any investigation whatsoever – even if an individual states they do not wish an investigation. The employer may be violating its obligation under the OHSA by declining to investigate the incident.
Workplace Harassment Investigations
Question 1: If the employer determines that it will select a third party investigator, how must the third party investigator be selected? Must the parties agree in advance or will it be sufficient for the employer to select a third party investigator who has the requisite skills & abilities?
Response: There have been no guidelines issued by the MOL in connection with the procedural and qualitative aspects of workplace harassment investigations – whether under current provisions or the Bill 132 amendments. It is hoped that a Code of Practice or other guideline will be issued prior to the September 8, 2016, implementation date. Further, Bill 132 is silent on the matter and does not require that there be consultation or agreement about the selection of a workplace investigator. However, that silence also means that there is nothing prohibiting such consultation and agreement. Whether the investigator should be someone who is agreed upon by the parties or is unilaterally selected by the employer may depend on past practices relating to such investigations and practical considerations such as the need for a prompt investigation. Employers may wish to create a list of potential investigators, whether that list is subject to consultation or not, so that an investigator can be engaged quickly should the need arise.
Subject to any additional guidance to be provided by the Ministry of Labour, we believe that a third party investigator should be selected based upon their skills and abilities. Factors could include knowledge of the OHSA and Human Rights Code, any relevant training or certifications they may have, their experience as a workplace investigator (including experience investigating sensitive matters), and even a written proposal setting out the manner in which the investigation will be conducted that may be assessed by the employer.
Question 2: What happens when the investigation is complete, the recommendations have been given to the employer, but they do not follow through. What can the investigator do? How does that affect the employer if the MOL inspector agrees with the recommendation?
Response: Employers will have to consider whether they require the investigator to provide recommendations, in addition to making factual findings. It may be that the employer’s position is that the function of the investigator is to do the investigation, make factual findings, and that any measures or corrective actions arising from an investigation are for the employer to determine after consideration of the investigation’s findings. That said, and if not already known, the investigator may wish to report on the remedy or remedies the complainant desires if the workplace harassment complaint is substantiated.
We do not believe that the employer could be subjected to an order or requirement from the MOL arising from the Bill 132 changes, requiring it to implement specific measures in response to the findings of a workplace harassment investigation. We have reservations about whether the section 25(2)(h) OHSA requirement on an employer to take every precaution reasonable in the circumstances to protect a worker, could be used to enforce any recommendations. The duties respecting harassment do not include specific corrective actions to be taken nor an express obligation to implement any investigation recommendations that may be made. We expect these matters will be the subject of future litigation.
Question 3: What if an employee submits/reports numerous complaints of harassment against numerous supervisors? If the employer determines that none of the complaints meet the definition of harassment. Complaints appear to be made ‘not in good faith.’ What is the employer recourse?
Response: This question addresses two separate issues: the handling of the complaint and the consequence of a bad faith complaint. First, the employer can assess a complaint and may determine that it does not meet the definition of “workplace harassment” or “workplace sexual harassment”. The employer may reach this conclusion either because the matter does not involve a course of vexatious comment or conduct as defined (for example the matter seems to be a personality conflict) or because the complaint appears to be about reasonable action taken to manage and direct workers – conduct specifically excluded from the definition of “workplace harassment”. The matter of a complaint that appears to be made in bad faith is a second separate issue. Most workplace harassment policies and processes provide a mechanism for dealing with complaints that appear to be made in bad faith. The employer may conduct a documented investigation into the making of bad faith complaints and whether the involved worker ought to be disciplined for same. Discipline would have to be carefully considered and be appropriate in all of the circumstances.
Question 4: What if an investigation was already conducted, completed and already communicated to all parties involved a couple months ago, would the MOL be able to order us to reopen the investigation?
Response: It appears that this is one of the thorniest effects the Bill 132 amendments could produce. Since part of the duty on the employer to protect workers from harassment is to ensure that an investigation, appropriate in the circumstances, is conducted, it appears that an MOL inspector could assess the appropriateness of the investigation and order an employer to re-do all or part of an investigation – even after corrective action has been taken. In our view an order from the MOL has the potential to be issued at any time because there is no time restriction or limit on circumstances where an inspector may issue such an order.
Question 5: Explain when it will and when it will not be a requirement for the employer to provide a written report, when an harassment investigation has taken place.
Response: The provision of a report to non-parties (such as the JHSC, workers, union) is dealt with in two separate express provisions of the Bill 132
amendments to the OHSA. In short, there is no requirement to provide the report to non-parties. First, the Bill provides that the results of an employer investigation into an incident and complaint of workplace harassment, and any report created, are not reports respecting health and safety for the purposes of the section 25(2)(l) and 25(2)(m) OHSA provisions requiring production to the JHSC, safety representative or workers. Second, the Bill contains the same express provision with respect to a written report that is prepared by a third party investigator pursuant to an inspector’s order.
With that said, what must be remembered is that there is a broad provision requiring that the alleged victim and alleged harasser (if he or she is employed for the employer) be informed of the “results of the investigation and of any corrective action” taken or that will be taken. Bill 132 requires this disclosure for all investigations. The content of the term “results” is unclear, without further guidance from the MOL, and could include a summary or verbal report, and general conclusions. The scope or meaning of the term “corrective action” is also unclear pending MOL guidance. It could mean providing information about planned steps to re-organize the workplace, conduct retraining, and/or disciplinary action. However, there is no specific requirement to provide information or discipline, or indeed any information, in writing. Employers should consider the nature of the information to be provided (and how to provide it) in order to develop a consistent approach for compliance with this obligation.
Comprehensive New Bill 132 Seminar: Tuesday, September 13 from 9:00am – 12:00pm
OHSA Bill 132 Amendments – OHS and Human Resources Implications.