Chad Sullivan and Bryan Mills

New Brunswick has recently introduced a new regulation under the Occupational Health and Safety Act on the topic of problematic workplace conduct. The change will bring New Brunswick in line with the other provinces, all of which already have some form of legislation in place on this topic.

The new regulation – New Brunswick Regulation 2018-82 (“Regulation”) – outlines specific precautions and procedures employers must follow to prevent and address workplace violence and harassment. The Regulation was announced on the National Day of Mourning, a day to recognize those who have been injured or killed because of workplace-related hazards. While many employers may already have policies in place to address violence and harassment in their workplace, many will need to either create policies or update their current policies to conform to the new Regulation.

In this update, we summarize the most significant changes employers will see when Regulation 2018-82 comes into force on April 1, 2019:

1. Definitions for violence and harassment. These terms are now defined in the Regulation. Previously, it was up to employers to develop their own definitions in their workplace policies. The inclusion of these definitions means that violence and harassment will now be legally defined terms binding on all employers in New Brunswick.
2. Risk assessments required. The Regulation requires all employers to perform a risk assessment analyzing the likelihood of violence in their workplace. The employer must consider the following information in conducting the assessment:

a. the location and circumstances in which the work is carried on;
b. the risk that may arise out of or in connection with

i. an employee’s work, or
ii. sexual violence, intimate partner violence or domestic violence occurring at the place of employment;

c. the categories of employees at risk, or the types of work that place employees at risk of experiencing violence;
d. the possible effects on the health or safety of employees who are exposed to violence at the place of employment;
e. all previous incidents of violence at the place of employment; and
f. incidents of violence in similar places of employment.

This risk assessment must be documented and made available to all committees (if any), all health and safety representatives (if any), and to an occupational health and safety officer (“Officer”) on request. The risk assessment must be reviewed when there is a change in the conditions at the place of employment or when ordered to do so by an Officer.

3. Code of practice for violence. Any employer with more than 20 employers, or with employees who work in certain professions, fields or workplaces (see section 374.2(4) of the Regulation for a complete list) must establish a written code of practice to mitigate this risk. The code must include the following:

a. the methods and equipment to be used and the procedures to be followed;
b. the follow-up measures to be used with affected employees;
c. the means, including alternative means, by which an employee may secure emergency assistance;
d. the procedure the employer shall follow to investigate and document any incident of violence of which the employer is aware;
e. the manner in which affected employees shall be informed of the results of an investigation;
f. the procedure the employer shall follow to implement any corrective measures identified as a result of the investigation, and
g. the identification of training needs.

4. Code of practice for harassment. All employers in New Brunswick will need to establish a code of practice for harassment – unlike the code of practice for violence, the code of practice for harassment applies to all employers, not just those with more than 20 employees or those with employees in certain designated fields. The code of practice must include the following:

a. a statement that every employee is entitled to work free of harassment;
b. the identity of the person responsible for implementing the code of practice;
c. a statement that an employee shall report an incident of harassment to the employer as soon as the circumstances permit;
d. the procedure the employer shall follow to investigate and document any incident of harassment of which the employer is aware;
e. the manner in which affected employees shall be informed of the results of an investigation;
f. the procedure the employer shall follow to implement any corrective measures identified as a result of the investigation;
g. the follow-employees; and
h. the identification of training needs.

5. Establishing and implementing the changes. In conducting the risk assessment, and in establishing and implementing the codes of practice, employers must consult with all of their committees (if any), all health and safety representatives (if any), or if there are no committees or representatives, all employees. The codes of practice must be made readily available to an Officer and to employees on request. It is also the employer’s responsibility to ensure adherence to the code.

6. Training. All employers will need to establish a training program for employees and supervisors in respect of codes of practice established. There are no provisions regarding what this training program needs to look like other than it must address the codes of practice in place.

7. Privacy. The Regulation contains provisions to protect the identity of persons involved in an incident of violence or harassment. The regulation prohibits employers from disclosing the identity of a person who is involved in an incident of violence or harassment or the circumstances related to the incident, other than when the disclosure is necessary in order to investigate the incident, required in order to take corrective measures in response to the incident, or required by law.

8. Review and update. The codes of practice must be reviewed once each year and will need to be updated where there is a change in conditions at the place of employment or when ordered to do so by an Officer

At Stewart McKelvey, our Labour and Employment group members have been tracking these changes and how they might affect our clients. We will continue to update you on these changes. This update is intended for general information only regarding the changes under the Occupational Health and Safety Act that affect labour and employment issues. Our Labour and Employment group is ready for change. Let us navigate it together.