New Occupational Health and Safety Regulations in New Brunswick: Addressing Workplace Harassment and Violence

New Brunswick has introduced new regulations under the General Regulations – Occupational Health and Safety Act (“OHSA”) aimed at identifying and preventing workplace violence and harassment (the “New Regulations”). The New Regulations will take effect April 1, 2019. The New Regulations have been introduced to address problematic workplace conduct, including bullying, physical violence, verbal abuse, sexual harassment and other threatening behaviour. The regulations previously did not address workplace harassment or violence. The New Regulations introduce a new set of obligations on both employers and employees.

Workplace Harassment

The New Regulations mandate that all employers must establish a written code of practice with respect to workplace harassment (e.g. a harassment policy).

The New Regulations define harassment broadly enough to include a range of offensive behaviour, which includes bullying, any comments or displays that may threaten the health or safety of an employee, and any objectionable conduct that ought reasonably be known to be unwelcome.

The harassment policy must include:

• a statement that every employee is entitled to work free of harassment;
• the identity of the person responsible for implementing the harassment policy;
• a statement that employees must immediately report an incident of harassment to the employer;
• the investigation procedure;
• information concerning how affected employees will be informed of the results of an investigation;
• the procedure to implement any corrective measures that follow as a result of the investigation;
• the follow-up measures to be used with affected employees; and
• the identification of training needs.

The New Regulations stipulate that an employer must review the harassment policy on an annual basis in consultation with the joint health and safety committee, or with employees if there is no established committee.

Employers are required to provide training to all employees regarding the harassment policy. Training records must be kept and made available to a WorkSafeNB officer, upon request.

Violence in the Workplace

Violence in the workplace is defined in the New Regulations as “attempted or actual use of physical force against an employee, or any threatening statement or behaviour that gives an employee reasonable cause to believe that physical force will be used against the employee”. Each employer must conduct an assessment regarding the risk of violence in the workplace. The employer is required to consult with the joint health and safety committee, or with employees if there is no established committee, in assessing the risk of violence in the workplace. The results of this assessment must be documented and be made available to the joint health and safety committee or WorkSafeNB officer, upon request.

The New Regulations include a list of factors to consider when conducting the assessment:

• the location and circumstances in which the work activities take place;
• the possible types of violence that arise out of or in connection with
  • an employee’s work activities, or
  • intimate partner violence occurring at the place of employment;
• the category of employees at risk, or the types of work activities that place employees at risk, of experiencing violence;
• the possible effects on the health or safety of employees who are exposed to violence in the workplace;
• previous incidents of violence in the workplace; and
• incidents of violence in similar workplaces.

The New Regulations mandate that all employers with 20 or more employees must establish a written code of practice with respect to workplace violence (e.g. a workplace violence policy).

An employer with fewer than 20 employees, will be required to establish a workplace violence policy if:

• violence risk assessment reveals a risk of violence in the workplace;
• work is carried out by any of the following:
  • an employee of the Public Service;
  • a supplier of goods or services to a public body under the Procurement Act;
  • an employee of an emergency service provider;
  • a health professional;
  • a pharmacist;
  • a veterinarian;
  • a social worker, outreach worker, crisis intervener or support worker, including persons providing services to victims of intimate partner violence, domestic violence or sexual violence;
  • an employee of an agency as defined in the Private Investigators and Security Services Act; or
  • a person registered or licensed under an Act of the Province to provide financial services;
• the work being carried out is:
  • teaching;
  • early learning and childcare services;
  • retail sales;
  • transporting goods or persons for hire in a vehicle, whether the vehicle is owned by a public body or privately owned; or
  • home support services;
• the work is performed at any of the following places:
  • a casino or other gaming premises under the Gaming Control Act;
  • a place in which a licence or permit issued under the Liquor Control Act applies and to which members of the public have access; or
  • a cannabis retail outlet as defined in the Cannabis Control Act.

A workplace violence policy must include:

• an inventory of locations and circumstances in which:
  • violence could reasonably be expected to occur; and
  • the policy applies;
• a description of the types of violence that may reasonably be expected to occur;
• information on the categories of employees at risk, or the types of workplace activities that place employees at risk, of experiencing violence;
• the identity of the person(s) responsible for implementing the policy;
• a statement that employees must immediately report any incident of violence to the employer; and
• the actions and measures the employer will take to mitigate the risks of violence in the workplace including:
  • the methods and equipment to be used and the procedures to be followed;
  • the follow-up measures to be used with affected employees;
  • the means, including alternative means, by which an employee may secure emergency assistance;
  • the procedure the employer shall follow to investigate and document any incident of violence of which the employer is aware;
  • the manner in which affected employees shall be informed of the results of an investigation;
  • the procedure the employer shall follow to implement any corrective measures identified as a result of the investigation; and
  • the identification of training needs.

The New Regulations stipulate that an employer must review the policy on an annual basis in consultation with the joint health and safety committee, or with employees if there is no established committee.

Employers are required to provide training to all employees regarding the policy. Training records must be kept and made available to a WorkSafeNB officer, upon request.

What This Means for Employers

The following are some key takeaways to help employers prepare for the New Regulations:

• all employers are required to have a harassment policy. If you already have a harassment policy, it should be reviewed to ensure compliance with the New Regulations;
• all employers must conduct an assessment addressing the risks of violence in their workplace;
• employers with 20 or more employees are required to establish a workplace violence policy;
• employers with fewer than 20 employees may be required to establish a workplace violence policy;
• the policies concerning harassment and workplace violence must be reviewed annually in consultation with the joint health and safety committee, or with employees if there is no established committee;
• the policies concerning harassment and workplace violence must be updated when there is a change in conditions at the place of employment, or when ordered to do so by a Worksafe NB officer; and
• a failure to adhere to the New Regulations may result in an order for compliance being issued by a WorkSafeNB officer.