Employee psychological well-being goes beyond employee assistance and counselling programs. Employment laws across Canada make it clear that employers have a legal obligation to protect the psychological well-being of their employees.
Unfortunately, harassment, bullying or other forms of abusive conduct occur in many workplaces, creating stressful work environments and undermining employee psychological health. According to a recent survey, 20% of workers say they are working in a toxic workplace. Employers have a legal duty to protect employees from these types of behaviour.
Moreover, protection from harassment is more than a basic legal requirement. As we noted in an earlier post, compliance with HR laws related to working conditions and safety forms the basis of a positive workplace culture.
So, what are an employer’s legal obligations to prevent or respond to a toxic workplace that may undermine the psychological well-being of its employees?
Workplace Harassment Laws
Workplace harassment laws set out the proactive and reactive requirements that employers must meet to protect the psychological well-being of workers.
The federal government and most provinces in Canada set out detailed workplace harassment regimes in their health and safety legislation. Also, human rights laws in most Canadian jurisdictions prohibit harassment based on a list of specified grounds (e.g., sex, race, religion, age, gender identity, sexual orientation).
Generally, workplace harassment refers to objectionable comments or conduct against a worker that can be reasonably expected to be unwelcome or to cause offence, humiliation or injury. Several jurisdictions (e.g., federal, Manitoba, PEI, Saskatchewan) specify that this includes conduct that can negatively affect a worker’s psychological well-being.
Most jurisdictions in Canada require employers to develop harassment policies and procedures in consultation with the health and safety committee or representative, as applicable. The specific requirements differ from one province to the next, but generally they include:
- employer statements committing to preventing and protecting employees from harassment;
- a process for employers and workers to follow when addressing harassment, including complaint and investigation procedures.
Generally, when there is a complaint of workplace harassment, employers must conduct an investigation. Investigation requirements tend to vary from one Canadian jurisdiction to the next. For example:
- The Canada Labour Code (which applies to federally regulated workplaces) sets out a detailed investigation process, including negotiation, conciliation, investigation and reporting. (See our earlier post for further information.)
- Some provinces (e.g., Alberta) require the investigator to prepare a written report.
- Ontario, Newfoundland and Labrador and PEI permit inspectors to order an impartial third party to investigate a complaint of workplace harassment.
Once the investigation is complete, the employer will have to inform the relevant parties of the outcome (subject to privacy requirements) and implement any discipline deemed appropriate under the circumstances.
Nova Scotia and Saskatchewan embed an additional psychological well-being entitlement into their health and safety legislation by requiring employers to advise affected employees to consult their health professional for treatment or counselling. Further, Saskatchewan specifies that workers are entitled to be paid for any treatment/counselling during work hours.
For more information on workplace harassment and violence, see our earlier post.
What’s New – Quebec Expands Laws re Psychological Well-Being
While Quebec legislation includes general protections from psychological violence and harassment in its health and safety and employment standards legislation, it does not have a workplace harassment regime similar to the one discussed above. However, Quebec has introduced several amendments (in Bill 59 and Bill 42) which will expand these general duties to protect workers’ psychological well-being (once they come into force). This includes:
- Psychological Harassment: Employers will have to protect employees from psychological harassment from “any person” (i.e., this would go beyond harassment from other workers to include customers or vendors).
- Policies & Programs: Health and safety programs and action plans will have to cover “psychosocial risks related to the work”. Moreover, employers will have to develop a detailed (separate) policy to prevent and manage psychological harassment, which includes items such as:
- identifying, controlling and eliminating the risks of psychological harassment, including verbal comments, actions or gestures of a sexual nature;
- recommending employee behaviour when participating in work-related social activities;
- providing information and employee training on psychological harassment prevention
- procedures for submitting and investigating complaints, and protecting complainants.
- Employee Discipline: Employment agreements will not be able to prevent an employer from taking into account previous employee discipline for physical or psychological violence, including sexual violence, when imposing discipline for a new case of misconduct related to these forms of violence.
- Reprisals: Employees who report psychological harassment targeting another person will be protected from reprisals.
- Duty to Protect: Employers will have a duty to protect workers exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace. Sexual violence is defined broadly and includes “unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly”. So, this employer duty may be triggered by an isolated comment of a sexual nature.
Quebec’s amendments require employers to protect the psychological well-being of workers through expanded employer requirements to prevent psychological harassment and violence, and promote positive workplace dynamics.
Final Thoughts
Clearly, employers have a legal duty to protect employees from harassment and other forms of abuse that can undermine their psychological well-being. But, as we noted above, compliance with these basic requirements can also be used as a starting point for building a positive workplace culture.
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