2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
New Occupational Health and Safety Regulations in New Brunswick: Addressing Workplace Harassment and Violence
New Brunswick has introduced new regulations under the General Regulations – Occupational Health and Safety Act (“OHSA”) aimed at identifying and preventing workplace violence and harassment (the “New Regulations”). The New Regulations will take effect September 1, 2018. Following the lead taken by the Ontario government in 2016, the New Regulations have been introduced to address problematic workplace conduct. This can include bullying, physical violence, verbal abuse, sexual harassment and other threatening behaviour. The regulations previously did not address workplace harassment or violence, so the New Regulations introduce a new set of obligations on both employers and employees.
Unlike the Ontario Occupational Health and Safety Act, which contains four potential regimes an employer may choose from in order to achieve compliance, the New Regulations consist of only one regime and lay out the specific duties that must be followed by both employers and employees in order to comply.
The New Regulations mandate that all employers must establish a written code of practice with respect to workplace harassment (e.g. a harassment policy).
The New Regulations define harassment broadly enough to include a range of offensive behaviour, which includes bullying, any comments or displays that may threaten the health or safety of an employee, and any objectionable conduct that ought to reasonably be known to be unwelcome.
The harassment policy must include:
- a statement that every employee is entitled to work free of harassment;
- the identity of the person responsible for implementing the harassment policy;
- a statement that employees must immediately report an incident of harassment to the employer;
- the investigation procedure;
- information concerning how affected employees will be informed of the results of an investigation;
- the procedure to implement any corrective measures that follow as a result of the investigation;
- the follow-up measures to be used with affected employees; and
- the identification of training needs.
The New Regulations stipulate that an employer must review the harassment policy on an annual basis in consultation with the joint health and safety committee, or with employees if there is no established committee.
Employers are required to provide training to all employees regarding the harassment policy. Training records must be kept and made available to a WorkSafeNB officer, upon request.
Violence in the Workplace
Violence in the workplace is defined in the New Regulations as “attempted or actual use of physical force against an employee, or any threatening statement or behaviour that gives an employee reasonable cause to believe that physical force will be used against the employee”. Each employer must conduct an assessment regarding the risk of violence in the workplace. The employer is required to consult with the joint health and safety committee, or with employees if there is no established committee, in assessing the risk of violence in the workplace. The results of this assessment must be documented and be made available to the joint health and safety committee and/or WorkSafeNB officer, upon request.
The New Regulations include a list of factors to consider when conducting the assessment:
- the location and circumstances in which the work activities take place;
- the possible types of violence that arise out of or in connection with
- an employee’s work activities, or
- intimate partner violence occurring at the place of employment;
- the category of employees at risk, or the types of work activities that place employees at risk, of experiencing violence;
- the possible effects on the health or safety of employees who are exposed to violence in the workplace;
- previous incidents of violence in the workplace; and
- incidents of violence in similar workplaces.
If the assessment reveals a risk of violence in the workplace, the employer must establish a written code of practice (e.g. a violence in the workplace policy) aimed at mitigating this risk. A policy regarding violence in the workplace has several specified requirements, including:
- an inventory of locations and circumstances in which:
- violence could reasonably be expected to occur; and
- the policy applies.
- the types of violence that may reasonably be expected to occur;
- information on categories of employees at risk, or the types of workplace activities that place employees at risk, of experiencing violence;
- the identity of the person(s) responsible for implementing the policy;
- a statement that employees must immediately report any incident of violence to the employer; and
- the actions and measures the employer will take to mitigate the risks of violence in the workplace.
The New Regulations stipulate that an employer must review the policy on an annual basis in consultation with the joint health and safety committee, or with employees if there is no established committee.
Employers are required to provide training to all employees regarding the policy. Training records must be kept and made available to a WorkSafeNB officer, upon request.
What This Means for Employers
The following are some key takeaways to help employers prepare for the New Regulations:
- all employers are required to have a harassment policy. If you already have a harassment policy, it should be reviewed to ensure compliance with the New Regulations;
- all employers must conduct an assessment addressing the risks of violence in their workplace;
- employers that identify potential risks of violence will be required to establish a policy regarding violence in the workplace;
- the policies concerning harassment and violence in the workplace must be reviewed annually in consultation with the joint health and safety committee, or with employees if there is no established committee;
- the policies concerning harassment and violence in the workplace must be updated when there is a change in conditions at the place of employment, or when ordered to do so by a WorkSafeNB officer; and
- a failure to adhere to the New Regulations may result in an order for compliance being issued by a WorkSafeNB officer.