New occupational health and safety legislation regarding harassment effective in Newfoundland and Labrador January 1, 2020

Twila Reid and Kara Harrington

On January 1, 2020, changes to the Newfoundland and Labrador Occupational Health and Safety Regulations, 2012 (“Regulations”) will take effect. These changes impact employers in a variety of ways, most notably requiring employers to: develop written harassment prevention plans, conduct risk assessments, protect workers from potential family violence in the workplace and to provide training regarding harassment prevention and the harassment prevention plan.

Harassment prevention plan. Section 24.1 of the Regulations requires employers to develop, implement and maintain a written harassment prevention plan in consultation with their occupational health and safety committee, worker health and safety representative, or workplace health and safety designate. The harassment prevention plan must include specific language regarding the obligations of the employer and workers, as well as various procedures for reporting, investigating and managing complaints. Section 24.1(4) requires that the harassment prevention plan be accessible to all workers in the workplace and be reviewed at least annually.

Risk assessments. The Regulations also add the requirement that employers conduct a risk assessment. Section 22.1 provides that the risk assessment must include consideration of a variety of factors, including workplace demographics and previous experiences in the workplace and in similar workplaces, and sets out the confidentiality requirement for the information collected during the risk assessment. Once the employer has conducted the risk assessment, Section 23 mandates that employers address any identified risks of injury to workers from violence by establishing procedures, policies and work environment arrangements to eliminate or minimize those risks.

Family violence. One of the key changes of the Regulations is the addition of “family violence” to the employer’s purview. Section 23(2) requires employers to take every precaution reasonable in the circumstances to protect workers from family violence of which the employer is, or ought to be, aware could expose a worker to physical injury in the workplace.

Training. Section 24.2 requires employers to both participate in and provide training relating to both harassment prevention and the harassment prevention plan.

Failure to comply with the Regulations could have serious consequences for an employer, as well as the employer’s directors, officers and agents. Therefore, it is crucial that employers keep proper records of their compliance, or else they could face difficulty defending against a claim for breach of the Regulations, and new case law indicates directors may also be held personally liable for claims.

Records. Employers should keep records of all activities that establish compliance with the Regulations. Without such records, there is no proof of compliance, and so the employer could still be held liable for failing to comply with the Regulations.

Liability of employer, directors, officers and agents. If employers fail to comply with the Regulations, they may be charged with an offence under the Occupational Health and Safety Act. If found guilty of the offence, the corporation may be fined up to $250,000, as well as up to $25,000 per day for each day the offence continues. Importantly, where a corporation has been convicted of an offence, an officer, director, or agent of the corporation who directed, authorized, assented to, acquiesced or participated in the commission of the offence is also guilty of an offence under that section.

Personal liability. Beyond liability under the Occupational Health and Safety Act, if employers breach the Regulations and a worker is hurt, the directors of the corporation may be held personally liable in a subrogated action by Workers’ Compensation. In a recent Court of Appeal decision from Alberta, Hall v Stewart, 2019 ABCA 98, the Court explained that, while the employer was protected from liability due to the workers’ compensation regime, the employer’s immunity did not extend to its directors, and so without additional coverage purchased through the workers’ compensation system, a negligent director could be held personally liable for any personal injuries he caused to the workers as a result of a negligent act, even though his negligent act occurred as part of his work for the employer. Thus, compliance with all of the relevant occupational health and safety legislation is crucial for avoiding a potentially expanding basis for liability.

This update is intended for general information only. Should you have questions on the above, please contact a member of our Labour & Employment group.

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