Bill 132, effective September 8, 2016, made significant amendments to Ontario's Occupational Health and Safety Act (OHSA).
What changed
1. "Workplace harassment" now includes "workplace sexual harassment", defined as:
- 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
- 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.
2. Employers must have a workplace harassment policy and program that covers workplace sexual harassment. The program must be developed and maintained in consultation with the joint health and safety committee or health and safety representative. Among other things, it must:
- include a way to report incidents of workplace harassment, including when the alleged harasser is the employer or a supervisor
- ensure that all complaints and allegations are investigated
- set out how the complainant and the respondent will be told the results of the investigation and any corrective action taken (this must now be communicated to both in writing)
3. Inspectors have new powers. An inspector can order an employer to have an investigation conducted "by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector", with a written report, at the employer's expense.
Best practices
Ministry of Labour inspectors will actively enforce the strengthened protection against workplace sexual harassment. These steps help you comply.
Create a training plan. Spell out how you will train all employees on Bill 132. Draft the training material in consultation with the JHSC or health and safety representative, and review and update all material at least once a year.
Review and update your existing policies so they cover:
- Reporting: how workers report harassment to someone other than their employer or supervisor, if the employer or supervisor is the alleged harasser
- Investigation: how incidents and complaints of workplace harassment will be investigated and dealt with
- Confidentiality: a statement that information about an incident or complaint, including identifying information about anyone involved, won't be disclosed unless necessary to investigate, take corrective action, or as required by law
- Corrective action: when and how you will respond to conduct covered by Bill 132
- Disclosing results: how the worker who allegedly experienced harassment, and the alleged harasser (if a worker of the employer), will be told the results of the investigation and any corrective action
Mandatory investigations
Every complaint of workplace harassment must now be investigated in a manner that is "appropriate in the circumstances", and Ministry of Labour inspectors decide what that means. Good practice includes:
- Identify conflicts of interest early. A personal relationship or fraternization between a manager and a subordinate may create one. Decide at the outset whether an external investigator is appropriate.
- Document everything and control your documents. Inspectors can order you to hire an external investigator if an investigation appears deficient. The Ministry wants evidence of a structured, documented investigation. Without it, or if a conflict taints the investigation, an order for an external investigation is very likely, and you alone pay for it.
- Adopt a no-reprisal policy. You must not punish an employee for making a complaint in good faith. Reprisal can be overt, such as firing someone for complaining, or subtle, such as denying overtime, passing someone over for promotion or moving them to a less desirable shift because they complained.
These are only some of the highlights of Bill 132. Review the amendments in full so you understand your obligations and stay compliant.