Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | February 2017 | News employers to have a workplace harassment policy in place, as well as a program for imple- menting that policy. Ongoing reviews are required, as well. "Employers must develop and maintain their program in con- sultation with their joint health and safety committee or a health and safety representative," says David Turner, Partner at Turner HR Law, in Toronto. "I'm sure there was a scramble by many employers to meet that deadline," says Jakibchuk of the policy completion date last Sep- tember. "But in many ways that was the easy part, drafting and putting things on paper. Now employers are appreciating the reality that they're going to have to investigate any allegations of workplace harassment that are presented before them." For some organizations, in- vestigating all complaints will re- quire something of a cultural shift. "This is going to be a big adjust- ment for a number of employers who in the past would have been too quick to discount allegations they might have viewed as more petty or trivial," says Jakibchuk. "If a worker makes a sexually sug- gestive comment to someone in the workplace or puts a hand on someone's shoulder, for example, these might have been actions that, in the past, that employer would have used their discretion to decide whether or not to ad- dress." He adds, "Now the OHSA tells employers this is something they have to deal with, and they must investigate." The type of investigation, however, can still be at the employers' discretion. "Under the statutory guidelines, the requirement is that you do an investigation appropriate in the circumstance," says Jakibchuk. No more grey areas Other issues may crop up with the new regulations, as well. "You may have a situation where an employee tells an employer about something that's concerning and that would fall under the defini- tion of workplace harassment, but they also tell the employer they don't want to make an of- ficial complaint and they don't want an investigation," says Jakib- chuk. "Now it's a statutory re- quirement. If an employer doesn't investigate and it comes to light, they could be in big trouble." Another challenge for em- ployers, Turner points out, will be to understand how to deal with claims that seem to be ma- licious or without merit. "While this has always been a challenge, the new Bill 132 requirements may cause employers to start seeing this issue come up more frequently. Understanding the scope and intent of the legis- lation and addressing this issue head on in the workplace policy will be essential," says Turner. Stretching resources Policy and program develop- ment, training, and the personnel to handle complaints and investi- gations — all require resources. "If an organization is going to do an investigation internally, es- pecially when investigations are about supervisors or managers, they may not have the different layers of people needed who are separate and distinct from what the complaint is about," says Jakibchuk. To offset this challenge, the bill stipulates that organizations must have the required backups or mechanisms in place to con- duct investigations. For smaller employers, it could mean using a third party, says Jakibchuk. "We have a lot of clients in the small or mid-size range," says Turner. "They simply don't have the resources to hire an HR person dedicated to these sort of issues but at the same time the downside of not being prepared or not being aware of what needs to be done could be huge." Necessary training To ensure the handling of com- plaints and investigations goes smoothly — whether done inter- nally or by a third party — staff need to be prepared. "I think the number one thing is to en- sure that there's training," says Jakibchuk. "Front-line super- visors who'll be receiving the complaints, as well as the people who'll be handling them, will need to know how these mat- ters should be escalated. And then the people who are actually involved in doing the investiga- tions themselves or retaining a third party investigator will need to be well versed on what to do." Liability Despite the cost of training and investigation, failing to take these steps could come with an even higher price tag. "If you don't do a proper investigation or you don't do an investiga- tion at all, you're liable, just as you would be under any other offense under the OHSA," says Jakibchuk. "For individuals you could be looking at a $24,000 fine or imprisonment. For cor- porations, you could be looking at a half-million dollar fine. "What's more, if an employer or a complainant does not be- lieve that an employer did a proper investigation or didn't do an investigation at all, there is recourse for the Ministry of La- bour to have a third party inves- tigate at the employer's expense," says Jakibchuk. Reduced need? Keeping employees safe, of course, is at the heart of the bill. But there's another silver lin- ing for employers. Putting the policies and programs in place could ultimately reduce the need for their use. "While these requirements may seem oner- ous, following them closely may actually help foster a culture of health and safety and assist em- ployers in avoiding incidents as well as the need to initiate later investigations, which can be quite costly and disruptive to the workplace," says Turner. "It's kind of a symbiotic relationship; by following these requirements and customizing policies and procedures to the needs of the workplace, the organization will become better informed and less likely to get into problems in the first place. And, if problems do arise, the organization will be far less likely to be caught off guard." Up ahead: Bill 26 There's another proposed change on the brink of becoming law. "Bill 26 would, if passed into law, amend the Employment Standards Act (ESA) and On- tario's OHSA to provide added protections for workers who have experienced domestic violence," says Turner. Bill 26, the Domestic and sexual violence workplace leave accommodation and train- ing act 2016, is before the On- tario Legislature, having passed second reading. "If this bill is passed, the ESA would be amended to have a new leave for victims of domestic violence," says Jakibchuk. The current ESA gives employees at least 10 days leave, but the new bill would ensure paid leave for those 10 days. "The purpose would be for the employee or employee's child, if they're the victim, to seek medical atten- tion, social services assistance or psychological counselling," says Jakibchuk. The OHSA would be changed as well; employers would be re- quired to provide information and training for staff about do- mestic and sexual violence. If the bill goes ahead as cur- rently written, employers would also be obligated to offer accom- modation to employees who are victims of domestic violence or whose children are victims, says Jakibchuk, including changes to their hours of work. "Certain- ly for employers that's going to have ramifications as to how they organize their business and their staffing requirements." The reassuring news for em- ployers is that many of the pro- posed changes are already part of workplace regulation. "Much like Bill 132, many of the require- ments that would become codi- fied if Bill 26 is passed are already arguably captured by other ex- isting legal requirements." For example, the OHSA requires employers to "take every pre- caution reasonable in the cir- cumstances for the protection of a worker" if the employer "becomes aware that domestic violence would likely expose the worker to physical injury that may occur in the workplace." As well, says Turner, the On- tario Human Rights Code al- ready requires employers to provide reasonable workplace accommodations on the basis of disability, family status and other protected grounds. "Employers should already be treating every request for accommodation seriously and with sensitivity." Safety < pg. 1 Some legal requirements already in place

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