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Sexual harassment protection mandate tightens employer obligation in Ontario

Sexual harassment protection mandate tightens employer obligation in Ontario

Employers with Ontario-based employees will have new and potentially costly obligations to protect employees from workplace harassment, and specifically sexual harassment, under occupational safety legislation set to take effect later this year.

Bill 132 amends Ontario's Occupational Health and Safety Act to require employers to implement workplace harassment policies and programs that explicitly address workplace sexual harassment — newly defined in the legislation — and mandate specific steps to be taken when investigating all harassment complaints. The amendments come into force on Sept. 8.

Employers would be required to develop, maintain and at least annually review a written program implementing workplace harassment policies that includes provisions for workers to report incidents to a person other than the employer or supervisor if that person is the alleged harasser, outlines how such incidents will be investigated and informs the complaining worker and the accused of the results and any corrective actions.

“It's comprehensive and important legislation,” said Sabrina Serino, a Toronto-based associate for Dentons L.L.P. “It affects all employers with employees in Ontario because it is proactive legislation. It puts a positive obligation on employers to actually update their policies and programs, conduct appropriate investigations and ensure that the necessary protections are in place for their workplaces.”

“It's included in the Occupational Health and Safety Act because it's geared toward the employer's role in protecting employees,” she added.

The legislation will make it critical for employers to ensure that human resources is fully trained on internal policies and best practices and procedures for conducting workplace investigations “so they don't fall into the traps of a faulty investigation and the potential liability that will ensure from that,” said Jessica Young, a Toronto-based associate with Stringers L.L.P.

The legislation also empowers health and safety inspectors to order an investigation by an impartial person with expertise, which could be an independent third party, and obtain a written report from that person at the employer's expense, but does not outline when such independent inspections can be ordered or cap their costs, lawyers said.

“The number one thing that is frightening about it is the ability for inspectors to order an investigation at the cost of the employer,” said Megan Beal, an associate with Filion Wakely Thorup Angeletti L.L.P. in Hamilton, Ontario. “There's potentially a huge cost associated with that and there doesn't really seem to be any parameters around how that authority can be used.”

Bill 132 builds on and addresses gaps associated with Bill 168, which amended the Occupational Health and Safety Act in 2010 to require employers to have a workplace harassment policy, but did not impose specific requirements beyond that as the bill was more focused on addressing workplace violence, according to lawyers.

“There were obligations around workplace harassment, but they were a bit vague and open to a lot of interpretation so this has taken away some of the question marks that existed and set out more explicitly what needs to be included, what an employer's duties are around harassment,” Ms. Beal said.

“It will require most employers to revisit their current policies and likely make some changes,” Ms. Young said. “Usually, I see policies that already address sexual harassment, but if they don't, they should. Certainly, providing updated training on all these changes, including sexual harassment training, will be key for employers.”

Ontario is the first province to establish a comprehensive scheme to address sexual harassment in the workplace safety context, but Prince Edward Island and Saskatchewan both impose some obligations on employers to protect workers from harassment, Ms. Serino said.

“I could see how (Bill 132) could definitely set the stage for other provinces to follow suit,” she said.

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