In Ontario, the Occupational Health and Safety Act outlines Employers’ legal obligations to ensure the maintenance of a safe workplace. The OHSA (the “Act”) requires employers covered by the Act to prepare and regularly review policies regarding workplace harassment. Employers are also required to conduct investigations into incidents and complaints of workplace harassment. Ontario has recently introduced Bill 190 which seeks to make amendments to the definition of workplace harassment under the OHSA.
The OHSA defines workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Workplace sexual harassment is also defined under the Act as “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be”.
The Purpose of Bill 190’s Amendments to the OHSA
Bill 190 proposes to amend the definition of both workplace harassment and workplace sexual harassment to include online harassment. Under this Bill both definitions are amended by adding “including virtually through the use of information and communications technology” after “workplace”.
It is surprising that it has taken this long for the Act to be amended to include virtual forms of harassment given the substantial increase in employees who now work exclusively remotely. The purpose of these proposed amendments has been discussed during legislative debates. For example, Member of Provincial Parliament Patrice Barnes spoke on the underlying purposes of these amendments stating that “Canadian research, as recent as 2022, has shown that women are more likely to subjected to workplace harassment, than other workers”. She also pointed out that “people who face multiple intersectionalities such as gender, race, or disability are also very likely to be harassed”. Barnes also highlights that “as many workers now work from home all or part of the time virtual harassment is something we increasingly need to ensure we are protecting workers from”.
The comments above demonstrate that the purpose of the amendments to Bill 190 is to modernize the OHSA. The inclusion of online harassment in the OHSA will help to ensure employers are obligated to have workplace policies in place related to online harassment and investigate complaints of online workplace and workplace sexual harassment.
Another significant amendment to the OHSA proposed by Bill 190 involves the scope of the Act’s application. Bill 190 seeks to expand the application of the OHSA to include “telework performed in or about a private residence or the lands and appurtenances used in connection therewith”. This means that the Act would apply to employees performing work from home.
Takeaways for Employers
These amendments to the OHSA have significant impacts on the obligations of employers. Employers’ obligations to ensure a safe work environment will extend beyond the brick and mortar of the office to online forums. Not only will Employers have to ensure they are encouraging a healthy digital workplace, but the amendments also appear to extend to provide protection for employees who perform virtual work from home. If as an employer you have any questions about how your legal obligations towards employees will be impacted by these amendments, don’t hesitate to reach out to an employment lawyer to discuss.
Takeaways for Employees
With more and more employees working exclusively from home, these OHSA amendments will help combat the expected corresponding rise of online workplace harassment. If you believe you are being harassed in the workplace, whether online or in person, don’t hesitate to contact an employment lawyer to provide guidance on how to navigate your situation.
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If you are an employer investigating the conduct of an employee, contact our lawyers to make sure that you are up to date on your obligations and potential liabilities.
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Authors: Elizabeth McConkey
Date: December 12, 2024
