Podcast Title: Health and Safety to Go!

Episode #175: Federal Violence Harassment

Host:   Hello, Welcome to Health and Safety to Go! broadcasting on behalf of the Canadian Centre for Occupational Health and Safety and from the comfort of our individual homes. Today we're joined by three employees have been working closely with Canada's new Workplace harassment and violence prevention legislation for Federally regulated workplaces.  Before we start I'd like to let our speakers introduce themselves. Let's start with Kathleen, welcome!

Kathleen:   Hi, this is Kathleen Nicholson, I am currently managing the Occupational Health and Safety Policy Team and from the context of working on the Workplace harassment and violence prevention regulations, I have been helping the policy team bring it forward from just an idea, and then into coming into force on January 1st of 2021.

Host:   Awesome. Well, it's so great to have you join us.  Anna Maria, can you tell us a bit about yourself?

Anna Maria: Hi, I work as a Policy Analyst with Kathleen in the Occupational Health and Safety Policy Unit in the Lead Program at Employment and Social Development Canada. And I helped to develop the tools and resources that were made available online.

Host:  Thanks Ana Maria. It's wonderful to have you here.  And from CCOHS, we’re joined by Amy.  Amy, could you take a moment to let us know your focus?

Amy:  Sure. My name is Amy Campbell, and I'm the Health and Safety Program Manager at CCOHS. I'm responsible for the development and implementation of our Health and safety program, which includes Workplace harassment and violence prevention program, and I've been working with our Technical Services Unit to launch three new e-courses in support of education on this very topic.

Host:  That's great. Thank you Amy. So we're going to jump right into things here. Anna Maria, let's start with you. Can you tell us what some of the main components of this new legislation are?

Anna Maria:  For sure. So the new legislation includes a new definition of harassment and violence. The definition is now on a continuum of reprehensible behavior. So anything ranging from teasing and bullying to sexual harassment and physical violence. The definitional itself is any action, conduct or comment, including of a sexual nature that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action conduct or comment.

And the new legislation also includes new employer requirements to prevent workplace harassment and violence. So that includes having to conduct an initial workplace assessment, developing a Workplace harassment and violence prevention policy, developing emergency procedures, providing a list of medical psychological or other support services to employees, as well as there are new employer requirements to respond to harassment and violence when it does happen. But this entails designating a person or a work unit to act as designated recipient to whom employees can submit their notice of an occurrence; responding to all notices of an occurrence within seven days; initiating negotiated resolution within 45 days.  Where an employer receives a notice, allowing the principal and responding parties to participate in conciliation if that's what they want to do; initiating an investigation if this is how the principal party wishes to proceed.  And concluding this entire resolution process within one year of receiving the notice of an occurrence.

And last but not least, there are new privacy provisions. The employer has to describe in their Workplace harassment and violence prevention policy how they will protect the privacies of the people who are involved in the occurrence.   The Policy workplace committees and health and safety representatives are prohibited from being involved in the investigation of an occurrence.

And the final report that's produced by an investigator cannot reveal either directly or indirectly the identity of the persons who are involved in the occurrence or resolution process for an occurrence.

Host:  Thank you Anna Maria. So there seems to be a lot to unpack here.   Kathleen, could you tell us how this new legislation can change the dynamic of a workplace?

Kathleen:  Sure, to sort of back it up a little bit from what Anna Maria mentioned, in terms of the impact, I think we could talk a little bit about how it was and sort of the legislation before and the regulations before and how things have changed because of what we've now brought into force on January 1st.

So I think as just has a little overview. I would like to say that there were actually separate, I'm going to call them regimes -  is very, you know government tease, but there it is. There were separate regimes that dealt with workplace violence and sexual harassment. So now, what we've done is we've put the two together and we have sort of structured things a little differently. So at one point, violence was dealt with under Occupational Health and Safety Provisions under Part 2 of the Canada Labour Code. Okay, and then sexual harassment was dealt with under Labour Standards Provisions that was Part 3 of the Canada Labour Code. So what we've done now is we've created that one regime instead of two, and I think in that way, in the workplace, may clarify things.

And I think I'm going to jump a little bit off of what Anna Maria finished with in her previous segment. And that is that what we're doing now is making things easier for the employees, by combining them and calling this violence and harassment or harassment and violence, as the case may be, because that's the way the regulations are. We are streamlining the way in which we approach how we address these issues in the workplace. Sometimes they’re systemic, sometimes it's one offs, but we're making it easier for employees.  And I think we're also making a very easy for employers in that sense.  And so that's the one of the bigger changes that is helping workplaces handle this type of problem and problematic behaviour in workplaces.

Host:  Kathleen, you wrap that up very nicely.  Streamlining the approach and making it easier for employees and for employers.  Amy, what changes should have a workplace expect to make?

Amy: There are some noticeable changes under the new regulations that impact how employers undertake their response when an occurrence has been reported by an employee.  Some of the things that didn't change though is the obligation to assess the level of risk for employees in different activities and to provide education to employees and managers and supervisors. So while there are changes, there are some things that have remained the same.  We have undertaken a review of our program at CCOHS.  We looked to our Collective Agreement. We looked to our employee education and partnered with our Workplace Health and Safety Committee in that review of what was in effect prior to the legislative changes being announced.

Host:   Thank you Amy. That's all really great to know.   Anna Maria, if we can jump to you. Would you be able to let us know a little bit more about why this legislation was put in place?

Anna Maria:   So harassment and violence continue to be pervasive issues in Canadian workplaces and there's a lot of research that shows that Canadian women continue to be subject to sexual harassment in the workplace.  In a 2018 online survey conducted by the Angus Institute found that 52% of Canadian women had been subject to sexual harassment in the workplace and there were similar studies that showed in 2017 that even Public  Service employees were being subjected to harassment or violence in the job.

A lot of evidence also shows that harassment is severely underreported with some studies estimating that up to 80% of occurrences going underreported. So the Government of Canada consulted Canadians to find out how harassment and violence was treated under the former legal framework and how the framework can be strengthened. And in that process, a lot of conversations took place with employers, labour representatives, subject matter experts, advocacy groups and the public in 2018 and an online survey was also conducted with the public. 

The result of those conversations were captured in a report titled “Harassment and Sexual Violence in the Workplace Public Consultations What We Heard” report, which highlighted the inadequacies of the former federal approach to addressing violence prevention. We also heard that Canadians continue to report that they are on the receiving end of unwelcome sexual advances, requests for sexual favors, sexually-charged talk while on the job. Most people who have experienced sexual harassment at work have experiences on multiple occasions.  The majority of those who have experienced sexual harassment at work have never reported the behavior to their employers, and many who do report it, do not receive a proper response or support.

Those with disabilities and members of visible minority groups are more likely to experience harassment and violence at work.  Many workplaces have inadequate or weak policies on harassment and violence prevention and many employees have never received training on existing policies.   Last but not least, employees in parliamentary workplaces do not have the same occupational health and safety protection as other federally regulated workplaces.

Host:  Anna-Maria, you mentioned incidents of harassment and violence going under or unreported. How do these changes better support employees?

Anna-Maria:   So especially on the piece of employees not feeling comfortable to come forward to provide a notice of an occurrence, one big change with this legislation is that the employer has to designate at least one other person or a group of people - a work unit, where an employee can go to provide a notice of an occurrence.  Ideally, this person or working is at arm's length from the day-to-day operation of the employee’s job and doesn't have a conflict of interest with respect to the occurrence. And this is really important in situations where an employee would be forced to provide the notice of occurrence to the alleged perpetrator. So, they would be forced to provide the notice of occurrence to their supervisor, who was the abuser, or their manager who was the person that was sexually harassing or harassing them.

That's one big change that I think will help people feel comfortable to come forward.

Also the fact that there are now specific requirements in how the employer responds.  You know a lot of employees complained, you know, I put forward a notice of occurrence, I put forward a complaint and it's just a black hole. I don't hear from the employer or I hear sporadically; it takes forever to resolve the occurrence. You know, I'm not getting any updates on what's going on and it goes on, sometimes it goes on for years.  The investigation could go on for years. And so with the new regulations, the employer has to respond to every notice of an occurrence with a couple of, with a few exceptions which I could get into if you want me to.  So, they have to respond to every notice from an occurrence and they have to do within a specific timeframe definitely within seven calendar days. And on top of that as the resolution process is evolving, the employer has to give monthly updates on the status of the resolution process. So, every month, the employer has to contact the principal party and the responding party, so at that point they’ve been involved in the resolution process and give them an update on what's going on.

So I think those two things are really important in helping employees come forward. I think with new privacy provisions will help employees come forward.  Employees have to know how their privacy will be protected or if it will be protected.  In some cases, it's not possible to protect the privacy of the principal party, if they wish to proceed to an investigation because at that point their identity has to be revealed.

Host:  Yeah. Okay, so it sounds like there is some major changes, like one is specifically the privacy for the employees and also the communication, and so there is no black hole anymore. The people who are reporting actually know what's happening with the incidents that they have reported.

Anna-Maria:  Yeah.

Host:  Okay. So there seems to be a lot of big needed changes to better support employees if we can look at this from an employer stance, what words of advice for employers would you give, to get them to start taking action or thinking about things from an employee's point of view?   Amy, can we start with you?

Amy:  Yeah, I mean the confidence and trust that the workforce is going to have in coming forward with reports of this nature. They're extremely sensitive will depend a lot on the on the culture in the workplace and the level of trust that they have, but also supported by the system of confidential reporting.  And so our organization spent a lot of time looking at how all of our health and safety reports were handled and how we were going to improve and strengthen the reporting so that our workforce had that level of confidence and trust, that their notice of occurrence would be handled confidentially, and their privacy would be respected.  While the regulation kind of places its expectations in terms of timelines, it's enforceable and that is a driver for organizations to do these things.

There's also the you know, the moral reasons for making culture changes in your workplace that support respect and civility, you know, the education that goes along with that to support employees to understand what are the risk factors within the nature of their work or their workplace that put them at risk of these actions or gestures or behaviors that constitute harassment and violence under its new definition.  And also the impact on individuals and their mental health. So there's all of the financial drivers for an organization to really take a good hard look at what they can do to support employees well-being.  And one of the regulatory requirements to identify in each community where there is employees, the psychological and other support services that are available if they were to experience harassment or violence is critically important.

So to make those connections to the community resources, especially where some organizations may not have the benefit of a formal Employee Assistance Program or Employee Assistance Services.

Host: Amy, you touched on two words that I want to follow up on, respect and civility.   Kathleen, can you tell us from an employer's obligation standpoint, how do you make sure that employees are getting what they deserve when it comes to respect and civility?

Kathleen:  That's a good question. I think that in terms of respect and civility. This also links up with a lot of what the Treasury Board Secretariat is working on and I think working with the Canadian School of Public Service, in that sense providing those materials and training materials learning materials for employees and employers, and also CCOHS in the training materials.

So in terms of employer obligations, I think that we can help in the workplace and addressing the respect and civility and fostering it, is making people making employers think about their workplace. And so one of the requirements is that they need to do an assessment of the workplace so that they can identify those risk factors that could lead to a diminished respect or diminished civility within workplaces. And I think once you've done an assessment of your workplace, you can find out and really get to the meat of the problem. I'm hoping anyway, and that assessment isn't just a one and done type of thing.  It may need to be done over a few years or every three years. But I think that every time there's a notice of an occurrence, they still have to then really rethink what happened in the workplace and why it happened and I think that that in its own way, will address what employees should be expecting, one could say. 

Another key thing that employers must do is develop their own Harassment violence and prevention policy within their workplace. And so, what that entails, is doing that assessment, but also coming up with their own policy and of course like the Labour Program has provided templates and some resources to help the employers figure out what their policy would be.  But it's really up to them how they're going to go ahead with making this Harassment and Violence and Prevention Policy. And I think that also puts employees in a good position to have an expectation for respect and civility in their workplace.

And I think another kind of offshoot of that would also be the support services that they need to make available, those support services that are going to help employees in the workplace. So for example, if we're talking about respect and civility and I believe Amy also mentioned psychological impacts. So if there's a systemic harassment and violence, I'm going to call it the harassment violence culture in certain workplaces, and people may not even realize that that's what that is, because it's just been there for so long, right? But if you don't address the psychological impact that may have on people and give them those support services that they might require, that is your medical psychological or other kinds of support services within their community, they may not get the support they need to actually move from those problems and resolve some of those issues. So there's a couple things.

Host:   I think that way you touched on towards the end is a perfect Segway as we wrap this up. So you spoke about a harassment and violence culture. And I know that that is sort of the term that you're using for this podcast, it's not an official term, but it makes me think about what employees deal with on a day-to-day basis, or what they could deal with.  And so I feel like sometimes we need to remind ourselves that as employees, we have rights.   Anna Maria, could you remind us of what those rights are?  

Anna-Maria:  Yeah, you can't really talk about employee rights without also talking about looking at what the employer has to do first. So I think if you want to change the culture you need to encourage employees not to be a bystander, encourage employees to come forward if they’re a witness, not just put everything on the principal party. But if you're a witness, you should be encouraged to come forward to put in a notice of an occurrence, and to put forward a complaint.  If you're in a meeting and someone makes an obviously racist or sexist remark, the reaction shouldn't be to laugh and then continue on as though nothing happened.  The reaction should be to address what happened and to educate employees on what's appropriate and what's not.  So as an employee, you do have the right to be trained on harassment and violence in the workplace and how to recognize it, how to minimize it, how to prevent it, how to respond to it, as well as the intersection between the prohibited grounds of discrimination and harassment and violence.  And the fact that a lot of harassment and violence actually happens because the employee has a disability or because of their race or their color or their religion.

You have the right to be trained on what the resolution process is and what it looks like. And again the employees have the right to come forward with a complaint and to expect that the employer will allow them to participate in either negotiate a resolution, conciliation or an investigation.  And that this will be completed in a timely manner, within one-year maximum, that’s the maximum threshold. It should be less than a year.

And if the employer does not abide by that, the employee has the right to submit a complaint to the Labour Program regarding the employer’s contravention of the code of regulations. Of course before they do that, they have to first notify their employer and try and resolve it with the employer. But if they can't, they have right to come through the Labour Program and to submit a complaint.

Host:  Thanks for that input.  Before we wrap up, let's review what we've learned about Harassment and violence prevention in the workplace.  First it's definition - Workplace harassment and violence is generally defined as any act in which a person is abused, threatened, intimidated or assaulted in his or her employment and just like Kathleen said, it's not just physical.

Health and safety of employees includes both the physical and mental aspects.  Employers have a duty to protect workers.  To do this, they can provide prevention training, they can Implement and communicate a zero-tolerance policy and they can always ensure that reporting is safe and confidential. These are just some of the ways that workplaces can start, there are many more.

And finally, let's take a moment to review workers’ rights:  1) The right to know about health and safety matters; 2) The right to participate in decisions that could affect their health and safety and 3) the right to refuse work that could affect their health and safety and that of others.

Again I'd like to thank all of our guests for contributing to such an enlightening conversation today.  For more information on Workplace harassment and violence prevention, you can visit CCOHS.ca. Thanks for listening!