November 9, 2016

By Brad Smith

Bill 132, “An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters”, amends 6 different Ontario Acts but we will focus on the changes to the Occupational Health and Safety Act.

The Occupational Health and Safety Act was amended in 2010 to include workplace harassment and workplace violence in occupational health and safety. Bill 132 now expressly includes workplace sexual harassment as a question of occupational health and safety.

There are several changes including:

• An employer must conduct an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances
• An employer must have a written program to implement the policy for workplace harassment
• The program must have measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor if the employer or supervisor is the alleged harasser
• The program must set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary
• How a worker who alleges workplace harassment and the alleged harasser will be informed of the results of the investigation and any corrective action
• Ensure the worker who alleged workplace harassment and the alleged harasser are informed in writing of the results of the investigation and any corrective action
• The program to implement the policy with respect to workplace harassment must be reviewed as often as necessary but at least annually
• A Ministry of Labour inspector has the authority to order an investigation by a third party

Related to Bill 132, the Ministry of Labour has published a Code of Practice. Compliance with the Code is compliance with the legal requirement. But failure to comply with the Code is not, in itself, a breach of the legal requirement. This means an employer can develop its own program to comply with the Occupational Health and Safety Act or it can apply the Ministry of Labour Code of Practice.

The amendments to the Occupational Health and Safety Act as a result of Bill 132 came into force on September 8, 2016. As a result, employers should have amended its policy and program regarding workplace harassment.

I recently completed a short presentation “Managing the Impact of Bill 132” at Forum North 2016, which can be viewed here.

Please do not hesitate to contact Brad Smith or another member of our labour and employment group if you have any questions about Bill 132 or wish to have us review your policy or program to ensure compliance with the Occupational Health and Safety Act.