What an Ontario workplace harassment program must contain

What must an Ontario workplace harassment program contain?

According to the Ontario government's guide to the law on workplace violence and harassment, the program must be in writing and must be developed and maintained in consultation with the joint health and safety committee or health and safety representative, if there is one. It must set out how workers report incidents to the employer or supervisor, and to another person when the employer or supervisor is the alleged harasser. It must say how incidents and complaints will be investigated and dealt with, how information about a complaint is kept from disclosure unless it is needed to investigate, to take corrective action or by law, and how the worker who raised the complaint and the alleged harasser, if they work for the employer, are told the results and any corrective action.

The program sits beside a policy. An employer must prepare a harassment policy and review it at least annually; where six or more workers are regularly employed, it must be in writing and posted. The definition behind both includes comments or conduct that happen virtually, through information and communications technology. Employers must also give workers information and instruction on the contents of the policy and program.

The ministry also publishes a code of practice, and following it is one way to meet these requirements; inspectors decide whether the requirements have been met. The ministry says its guide is not legal advice and that an employer who needs help determining compliance should consult a lawyer.

What does the Ontario program leave out?

It leaves out any requirement to assess the risk of harassment before an incident. The ministry's guide answers the question directly: the Act does not require an employer to assess the risk of workplace harassment. Each element the Act names is a step taken after an incident or complaint exists: report, investigate, keep confidential, inform.

Nothing on that list asks an employer to look at workload, at how many approvals a decision needs, or at how much emotional demand a role carries. A program can meet every element and still sit on top of a team with no room left. That is not a fault in the law. A harassment program is built to deal with incidents, and OHA's Five Loads look at the conditions around them: decisional, cognitive, emotional, relational and administrative load.

What does a workplace harassment case cost an employer?

The ministry's guide and code of practice give no figure for what one harassment complaint costs an employer, and another organization's number would not be yours. What the ministry's material does show is where the cost arises. An inspector may order an investigation by an impartial person at the employer's expense, with a written report to the employer. The code of practice asks that an investigation take no more than 90 calendar days unless there are extenuating circumstances, that the worker and the alleged harasser, if they are a worker of the employer, be told the results and any corrective action in writing within ten calendar days of its conclusion, and that records be kept for at least one year.

Those are hours of HR and manager time, and they come on top of what a case does to the people in it. On replacement cost in general, Gallup's published range for replacing one employee is half to two times annual salary; its data is American and its article dates from 2019. On prevalence, Statistics Canada's 2020 Survey on Sexual Misconduct at Work found that 47% of women and 31% of men reported ever experiencing some form of harassment or sexual assault in the workplace. That measure is wider than the OHSA definition. The calculator below sizes absence and departures from your own numbers, so you can set a range against the program's cost.

How much does the program depend on manager capacity?

A great deal, because the code of practice names supervisors and managers among the people who receive reports and run investigations. The code of practice says supervisors and managers must receive additional information and instruction on recognizing workplace harassment and handling a complaint. It also says the person who investigates, whether a manager, a supervisor or an HR representative, must complete at least seven steps and write a report.

Instruction is one half of capacity. The other is room: a manager running a case needs hours for interviews, notes and follow-up in a week that already has a full calendar. In April 2023, Statistics Canada found that 21.2% of employed Canadians, about 4.1 million people, reported high or very high work-related stress, and a heavy workload was the most common cause, at 23.7% of employed people. Ask what a manager on your team would set aside to run a case, and who would take it.

How do you review the program each year?

The OHSA requires a review as often as necessary, and at least annually, to check that the program adequately implements the policy. The ministry's guide says the review should look at whether the measures and procedures are current and whether there are gaps. An incident, complaint or investigation within 12 months of the latest review that revealed gaps, or procedures that were not followed, can mean the review is needed sooner.

Use the annual review for two questions the law does not ask. Who would run a case today, and what would they set aside? A full week is a gap in the program as real as a missing alternate contact. And what is consuming the team's capacity? Our post on how to spot psychosocial hazards in the workplace shows where to look, and what a capacity diagnostic measures shows what OHA reads once you have.