Getting ready for September 8, 2016.
I have written a number of articles in the past to help employers prepare for the upcoming new Sexual Violence and Harassment law which comes into force on September 8, 2016.
To further assist employers with creating Sexual Violence and Harassment policy and procedures, I refer the reader to the newly released Code of Practice issued by the MOL. CLICK HERE of a copy.
It is important to note that employers are not legally required to comply with the Code of Practice. Having said that, those employers who comply with the Code will be considered compliant by the MOL.
The Code of Practice is a practical guideline for employers to follow. It offers sample templates with further information and instructions relating to Sexual Violence and Harassment.
The Code of Practice is broken into 4 Parts. Employers can choose to adhere to one or all Parts of the Code of Practice. However, the MOL has noted that "if an employer adheres with a Part of the Code of Practice, it must adhere with all of the Practice outlined under that Part to be deemed in compliance with the related workplace harassment provision".
Failure to comply with all or Part of the Code of Practice may not be a breach of the Workplace Harassment Provisions under the OHSA because, as noted above, the Code of Practice is just one way in which employers can meet the legal requirements regarding workplace harassment.
Here is a brief overview of the 4 Parts of the Code of Practice.
Part 1. Workplace Harassment Policy
This section outlines that an employer may decide to choose to prepare a separate stand-alone policy on workplace sexual harassment; or combine it with a workplace violence policy or the occupational health and safety policy.
An employer may also choose to combine its workplace harassment policy with an anti-discrimination and anti-harassment policy that addresses the protected grounds under Ontario's Human Rights Code.
Click HERE for a sample policy on workplace harassment.
Part 2. Workplace Harassment Program
This section outlines the requirements for an employer to develop and implement the workplace sexual harassment program; and reporting procedures for complaints.
The section addresses that a person who receives a compliant should not be under the alleged harasser's direct control. Appoint an alternative person who can be objective in reviewing the complaint and indicate if that person will be required to investigate the complaint. The program should spell out the possible consequence(s) which could include an apology, re-education, counselling, reprimand or shift change are some examples. There is also a requirement to maintain written records which is to be included in your written program.
CLICK HERE for a sample program
Part 3. Employer's Duties Concerning Workplace Harassment
An employer must ensure an investigation is conducted into workplace harassment, whether a worker has formally or informally made a complaint or the employer is otherwise aware of an incident(s). One example may be if a supervisor witnessed it or learned about it from a third party. The investigation must be objective and provides an "appropriate investigation".
The person conducting the investigation, whether internal or external to the workplace, must not be directly involved in the incident or complaint, and must not be under the direct control of the alleged harasser. This person should have knowledge of how to conduct an investigation appropriate in the circumstances.
The employer must ensure that the results of the investigation and any corrective action are provided to the worker who allegedly experienced workplace harassment in writing and within ten (10) calendar days of the investigation being concluded.
Lastly, the Code of Practice requires that the program will be reviewed annually for continuous improvements.
CLICK HERE for a sample investigation procedure.
Part 4. Providing Information and Instruction on Workplace Harassment Policy and Program.
The employer must provide information and instruction on what conduct is considered workplace harassment, including workplace sexual harassment. Providing training assists workers in knowing what conduct is unwelcome in the workplace.
Supervisors also need to receive specific instructions and information on how to recognize and handle a workplace harassment incident so that the workplace harassment does not go unaddressed. Workplace harassment that is not addressed may escalate into workplace violence.
The Code of Practice provides insight on the MOL expectations for employers to meet or exceed. A complete copy of the Code of Practice can be found HERE.