Sexual Harassment In The Workplace: Updates To The Occupational Health And Safety Act

OCHA & Sexual Harassment Policy

The workplace harassment sections of the Occupational Health and Safety Act[1] have changed with the addition of sexual harassment. These changes took effect on September 8, 2016.

Most employers are familiar with the changes back in 2010 under Bill 168, resulting in the addition of workplace violence and harassment obligations and procedures under the Occupational Health and Safety Act.  This latest amendment will involve the addition of workplace sexual harassment to the definition of workplace harassment. The specific definition is defined as follows:

1. engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
2. making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

As a result of these changes employers, in consultation with the joint health and safety committee or health and safety representative, will need to update their policies and procedures covering harassment and violence in the workplace to make sure the definitions, complaint process and other legal requirements includes sexual harassment. In addition, employee training programs will also need to be updated to cover sexual harassment.

The Occupational Health and Safety Act also requires the following changes to a company’s policies and programs:

• The company’s internal complaint procedure must provide an option for employees to report incidents of workplace harassment to a person other than the employer or supervisor, if that individual is the alleged harasser.
• An appropriate investigation must be conducted with the complainant being informed in writing of the results and any corrective action that will be taken.
• The policy is required to reference how details of the incident or complaint, including identifying information, will not be disclosed unless necessary for the purposes of the investigation or by taking corrective action.

A company’s program must be reviewed as often as necessary and at least on an annual basis.

The Ministry of Labour has released a Code of Practice which is designed to assist companies in meeting their obligations. The Code of Practice contains four (4) parts and compliance with each part will be determined separately. Companies that comply with the practices contained in one or all parts of the Code of Practice will have met their legal obligations for workplace harassment under the Occupational Health and Safety Act. However, this is optional so that companies are not required to comply with the Code of Practice.  A company will not be breaching its legal obligations by failing to comply with the Code of Practice.

A copy of the Code of Practice is available on the website of the Ministry of Labour at the following link:
​https://www.labour.gov.on.ca/english/hs/pubs/harassment/index.php

Companies should consider updating their policies and practices as soon as possible as a result of the legislative change on September 8, 2016.

[1] Occupational Health and Safety Act, R.S.O. 1990, CHAPTER O.1.