Harassment as a New Workplace Safety Issue

Introduction

Since harassment is the biggest trending topic related to the workplace, it seems opportune to highlight the harassment provisions in the new Alberta occupational health and safety (“OHS”) legislation, which is known as Bill 30: An Act To Protect The Health And Well-Being Of Working Albertans.

Harassment and violence bear some unusual characteristics as workplace hazards.  These are human-centric problems, unlike most hazards which are physical and external to the workforce.  Harassment, by definition, is largely subjective and generally a longer term harm like other damaging exposures.  Both harassment and violence may be difficult to predict.

Existing Legal Protection

Part 27 of the current Occupational Health and Safety Code 2009 addresses the hazard of workplace violence.  Employers must develop effective policy and procedures to minimize workplace violence and ensure that workers are aware of the same and instructed in how to recognize workplace violence.

Defining harassment in a legal all-or-nothing framework is problematic.

Workers must be instructed in the appropriate response to workplace violence, including how to obtain assistance, and procedures for reporting, investigating and documenting incidents of workplace violence.  Workers must be advised to consult a health professional for treatment or referral if the worker reports an injury or adverse symptom resulting from workplace violence.

To summarize, currently the legal obligations on Alberta employers is to maintain a policy and procedures on workplace violence and to instruct workers on how to deal with it.  There are no definitions of harassment or violence and no clear duty on employers to minimize either of them.  There are no specific OHS regulations pertaining to harassment, although human rights legislation and the common law of employment operate to discourage it.

The New OHS Provisions Define Harassment

The amendments broaden the concept of workplace “health and safety”.   Employers and other stakeholders must ensure the psychological and social well-being of workers, which includes protecting against harassment, bullying and psychological violence.

The new definitions of harassment and violence address psychosocial risks.  All forms of abuse, including sexual and domestic, are now captured and regulated.

Other General Duties on Employers

The new definitions of harassment and violence address psychosocial risks.  All forms of abuse, including sexual and domestic, are now captured and regulated.

Employers must also ensure the health, safety and welfare of workers, that workers are aware of their OHS rights, that workers are not subjected to or participate in harassment or violence, and that any health and safety concern raised is resolved quickly.  These will all be unique challenges in the harassment domain.

Workers may refuse to work whenever they reasonably believe there is a dangerous condition, presumably including harassment, at the worksite or the work constitutes a danger to the health and safety of any person.  Refusing workers will still be entitled be paid their normal wages and benefits while their refusal is being investigated.

Why Harassment Should Not be Enshrined in OHS Legislation

Many people hold strong convictions that more legislation regulating harassment and bullying would not produce positive behavioural outcomes.  This occurs in the workplace as well as in other settings of social interaction and it is despicable behaviour that should be condemned and punished.  But does more layered regulation – in this case in the OHS context – risk further overall harm?

Get ready. The new law comes into effect on June 1, 2018.

Defining harassment in a legal all-or-nothing framework is problematic.  What is the threshold quality and quantity of the prohibited behaviour?  Is it a subjective or objective analysis?  What standard of evidence is required for proof?  Experience shows how factually-relative, indeterminative and practically intractable these kinds of workplace disputes may become.  There is no evidence of any meaningful deterrent effect of this legislation.

This OHS layer of legislation will duplicate and possibly conflict with other regulation and legal recourses including in the Criminal Code, the Human Rights Act, and Labour Relations Code, the Charter of Rights, the Workers’ Compensation Act, and the existing Part 27 of the OHS Code, not to mention most collective agreements and labour, employment and torts common law.  Already there is excessive complexity in reconciling rights and obligations between workers, co-workers, employers and regulators.  This additional regulatory layer may interfere with otherwise effective private remedies.

Employers are usually apprised of the problem of workplace harassment and are already motivated by existing regulatory and civil recourse to minimize it in their own workplaces.  If they lose trained employees, endure reductions in productivity and suffer internal strife, and face lawsuits based on harassment and bullying, they are clearly incentivized to reduce this behaviour in their workplaces.

OHS legislation should focus on solving issues clearly and specifically related to safety and resist the urge to regulate what are essentially interpersonal and labour relations disputes, especially since harassment can represent almost anything to anyone who seeks to assert it as a legal claim.  Will OHS regulators be adequately resourced and trained to effectively intervene or respond to inter-personal complaints?

Workers will have no reason to develop skills to effectively manage workplace problems outside of regulation.  The regulatory regime may compromise confidentiality of vulnerable workers who report and are forced to participate in investigations that ultimately hurt their own long term employment interests.  The new OHS regulation of harassment increase worker expectations that ultimately will not be satisfied.  This may lead to less respect for, and confidence in, the regulatory process to protect them over time at work.

Conclusion

There are other legislation-specific concerns with these reforms.  Violence and harassment appear to be treated as variations of the same problem.  Harassment may be as little as a single incident or comments that a worker says causes offence.

These reforms will significantly expand Alberta’s OHS regulatory processes and impose high costs and disruption on employers.

Get ready.  The new law comes into effect on June 1, 2018.

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 

Thomas D. Brierton
Thomas D. Brierton is an Associate Professor at the Eberhardt School of Business at the University of the Pacific in Stockton, California.
 


A Publication of CPLEA