Risk assessment and workplace harassment

The countdown is on for federally regulated employers to ensure they are in compliance with the new Workplace Harassment and Violence Prevention Regulations^[1] (the “Regulations”), coming into force on Jan. 1, 2021. The regulations, made under the Canada Labour Code^[2] (the “Code”) will replace the violence prevention provisions in Part XX of the Canada Occupational Health and Safety Regulations^[3] (COHSR).

The requirements under the new Regulations intend a shift toward a more proactive system of workplace violence and harassment prevention. The risk assessment provisions are but one way the Regulations emphasize the importance of prevention. First and foremost, the new provisions require an assessment of the risk of workplace violence and workplace harassment, unlike the previous legal framework, which only required an assessment of workplace violence.

Under the new regime, an employer and the applicable partner[4] must jointly identify workplace violence and harassment risk factors and then develop and implement prevention measures to mitigate those risks in the workplace. As the Code broadly defines workplace as “… any place where an employee is engaged in work for the employee’s employer,” the risk assessment must take into account that the “workplace” may include public spaces, third-party premises and other locations, if that is where the employee is performing work for their employer.

Section 8 of the Regulations requires identification of risk factors, internal and external to the workplace, that contribute to harassment and violence in the workplace. In conducting this assessment, the following must be taken into account:

• the culture, conditions, activities and organizational structure of the workplace;
• circumstances external to the workplace;
• any reports, records and data that are related to harassment and violence in the workplace;
• the physical design of the workplace; and
• the measures that are in place to protect psychological health and safety in the workplace.

The section 8 provisions can be interpreted to mean that a risk assessment would need to consider — but not be limited to — the following factors:

• working with clients or third parties that exhibit characteristics that can put an employee at greater risk of workplace harassment or violence, such as clients who may be under the influence of alcohol or drugs or who may exhibit discriminatory behaviour;
• working alone, late at night or in isolated, low-traffic areas;
• a work environment that tolerates or condones discriminatory attitudes or behaviour;
• the mental and physical demands of a job including limited control over how work is done or inadequate training; and
• circumstances related to family or domestic violence such as a family member threatening, stalking or physically harming an employee or co-workers.

Section 9 of the Regulations requires that no later than six months after the risk factors are identified, the employer and its applicable partner must jointly develop and implement preventive measures that, to the extent possible, (1) mitigate the risk of workplace harassment and violence; and (2) neither create nor increase the risk of workplace harassment and violence.

Employers may consider preventive measures in the context of training, workplace design and administrative practises, including but not limited to:

• training for managers on domestic violence and how it can contribute to workplace violence;
• training for employees on how to report workplace harassment and violence occurrences;
• improved access control into the workplace;
• developing check-in protocols for employees who work off site; and
• conducting regular “pulse checks” with employees on issues such as workplace stress, workload and conflict.

 The above are examples of preventive measures and employers should keep in mind that whatever measures are decided upon, they need to address their organization’s specific risk factors.

It is up to the employer and applicable partner to determine how to conduct the risk assessment and to take all the other prescribed steps necessary to comply with the Regulations. Employers may wish to consult with qualified OHS professionals where appropriate.

^{[1] SOR/2020-130
[2] R.S.C., 1985, c. L-2
[3] SOR/86-304
[4] The policy committee is the default “applicable partner” for all work that is to be performed jointly under the Regulations. However, if there is no policy committee in the workplace in question, then the employer must work instead with the workplace committee or health and safety representative: Regulations, section 1(2).}

Cathy Chandler is a paralegal at Fasken in Toronto. With expertise in OHS and workers’ compensation law, she provides consulting, training and litigation support for organizations across Canada. She can be reached at (416) 868-7812 or [email protected]. 

This article originally appeared in the Jan/Feb 2020 issue of COS.