Canadian HR Reporter

CANADIAN HR REPORTER March 6, 2017 16 FEATURES LOOKING FOR A SUPPLIER OR VENDOR? Visit hrreporter.com/hr-vendors-guide HEALTH & SAFETY Caution: Safety changes ahead A look at what employers need to know about safety regulations in Ontario By Melissa Campeau I f change is the only constant in life, that's true of employee safety regulations as well. With one big change just finalized in Ontario, and one more seem- ingly just around the corner for the province, employers will need to prepare to ensure policies and programs are in place, practices are up to date and resources are set aside to cover the costs. The biggest news of the last year was Bill 132, amending the Occupational Health and Safety Act (OHSA) to provide greater protections for workplace harass- ment, according to Adrian Jakib- chuk, an associate at law firm Lit- tler in Toronto. As of Sept. 8, 2016, the bill re- quired employers to have a work- place harassment policy in place, as well as a program for imple- menting that policy. Ongoing re- views are required, as well. "I'm sure there was a scramble by many employers to meet that deadline," says Jakibchuk. "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 investi- gate any allegations of workplace harassment that are presented before them." No more grey areas For some organizations, investi- gating all complaints will require something of a cultural shift. "is 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 suggestive 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 discre- tion to decide whether or not to address." "Now, the OHSA tells em- ployers this is something they have to deal with, and they must investigate." e type of investigation, how- ever, can still be at the employer's discretion. "Under the statutory guide- lines, the requirement is that you do an investigation appro- priate in the circumstance," says Jakibchuk. Employers must develop and maintain their program in consul- tation with their joint health and safety committee or a health and safety representative, according to David Turner, a partner at Turner HR Law in Toronto. Other issues for employers may crop up with the new regulations, as well. "You may have a situation where an employee tells an em- ployer about something that's concerning and that would fall under the definition of workplace harassment, but they also tell the employer they don't want to make an official complaint and they don't want an investigation," says Jakibchuk. "Now it's a statutory require- ment. If an employer doesn't in- vestigate and it comes to light, they could be in big trouble." Another challenge for employ- ers will be to understand how to deal with claims that seem to be malicious or without merit, says Turner. "While this has always been a challenge, the new Bill 132 re- quirements may cause employers to start seeing this issue come up more frequently. Understanding the scope and intent of the leg- islation and addressing this issue head on in the workplace policy will be essential." Stretching resources Policy and program development, training, and the staff to handle complaints and investigations — all require resources. "If an organization is going to do an investigation internally, especially when investigations are about supervisors or manag- ers, they may not have the differ- ent layers of people needed who are separate and distinct from what the complaint is about," says Jakibchuk. To offset this challenge, the bill stipulates organizations must have the required backups or mechanisms in place to conduct investigations. For smaller em- ployers, it could mean using a third party, he says. Employers in the small or mid- size range "simply don't have the resources to hire an HR person dedicated to these sort of issues," says Turner. "But, at the same time, the downside of not being prepared or not being aware of what needs to be done could be huge." 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. "e number one thing is to ensure that there's training," says Jakibchuk. "Front-line supervisors who'll be receiving the complaints, as well as the people who'll be han- dling them, will need to know how these matters should be escalated. And then the people who are ac- tually involved in doing the inves- tigations 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 inves- tigation or you don't do an inves- tigation at all, you're liable, just as you would be under any other offence under the OHSA," says Jakibchuk. "For individuals, you could be looking at a $24,000 fine or im- prisonment. For corporations, you could be looking at a half- million-dollar fine." "What's more, if an employer or a complainant does not believe that an employer did a proper in- vestigation or didn't do an inves- tigation at all, there is recourse for the Ministry of Labour to have a third party investigate at the em- ployer's expense," he says. Keeping employees safe, of course, is at the heart of the bill. But there's another silver lining for employers. Putting the poli- cies and programs in place could ultimately reduce the need for their use. "While these requirements may seem onerous, following them closely may actually help foster a culture of health and safety and assist employers in avoiding incidents as well as the need to initiate later investiga- tions, which can be quite costly and disruptive to the workplace," says Turner. "It's kind of a symbiotic rela- tionship; by following these re- quirements and customizing poli- cies 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 ere's another proposed change on the brink of becoming law. Bill 26, the "Domestic and sexual violence workplace leave accom- modation and training act 2016," is before the Ontario legislature, having passed second reading. "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. If this bill is passed, the ESA would be amended to have a new leave for victims of domestic vio- lence, says Jakibchuk. e current ESA gives employ- ees at least 10 days' leave, but the new bill would ensure paid leave for those 10 days. "e purpose would be for the employee or employee's child, if they're the victim, to seek medi- cal attention, social services as- sistance or psychological coun- selling," says Jakibchuk. e occupational health and safety act would be changed as well; employers would be required to provide information and train- ing for staff about domestic and sexual violence. If the bill goes ahead as written, employers would also be obligated to offer accommodation to em- ployees who are victims of domes- tic violence or whose children are victims, says Jakibchuk, including changes to their hours of work. "Certainly, for employers, that's going to have ramifications as to how they organize their business and their staffing requirements." e reassuring news for em- ployers is many of the proposed changes are already part of work- place regulation. "Much like Bill 132, many of the requirements that would become codified if Bill 26 is passed are al- ready arguably captured by other existing legal requirements." For example, the OHSA re- quires employers to "take every precaution 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 already requires employers to provide reasonable workplace accommo- dations on the basis of disability, family status and other protected grounds. "Employers should already be treating every request for ac- commodation seriously and with sensitivity." Melissa Campeau is a Toronto-based freelance writer. Credit: Lolostock (Shutterstock)

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