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Sexual Harassment and Assault at Work: Options for Legal Redress
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Introduction – Part I

In the wake of the #MeToo era, a burgeoning consciousness has grown around the existence of and need to address sexual harassment and sexual assault in the workplace. Individuals of all genders and orientations have found the courage to come forward, and legislation in Ontario has made it mandatory for employers to sufficiently investigate these allegations in a timely and comprehensive manner. Trauma-informed Workplace Investigations inherently require a sound understanding of power dynamics and nuanced forms of sexual harassment. New hybrid work models pose unique obstacles for enforcing cyber-bullying and anti-discrimination/harassment policies, and have brought to the forefront the importance of building a workforce predicated on respect, plurality, accountability, legal compliance, and employee well-being. As part of this, employees who experience sexual assault and/or harassment in the workplace may have different legal options at their disposal. 

In Part 1, we begin here with a  review of three possible options. 
Continue Reading Sexual Harassment and Assault at Work: Options for Legal Redress – Part I

Workplace Law Trends for 2022
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Welcome to 2020 Two! It’s hard to believe we’ve been living through a pandemic for nearly 2 years. Workplaces are beyond worn out, stress leaves and harassment complaints continue to increase, parents are juggling remote learning and limited activities for kids once again, and many workplaces struggle to find people to fill the roles. 

Yes, it’s all a bit of a mess, but out of crisis emerge new ways to approach issues and novel solutions to traditional problems. Here are our predictions for workplace law trends and changes in 2022.

#1 – Push for Hybrid and Remote Working

Studies over the last year are showing a deep disconnect between senior bosses and employees about preferred workplaces. Increasingly, employees want – and now expect – at least some remote work option, whereas senior levels of management are more likely to continue to see in-person work better for productivity, mentoring and focus.
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ONCA upholds employer for-cause termination for sexual harassment
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Overview

In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Ontario Court of Appeal (ONCA) overturned the lower Court’s decision that found an employee had been wrongfully dismissed in relation to sexual harassment allegations and was awarded 20 months’ notice. In its reversal, the ONCA held that the employee had failed to fulfill remedial steps required by his employer; that he did in fact sexually harass his coworker; and that his for-cause termination was justified.  

Background

A senior, 20-year employee made several comments to his younger, female coworker on several occasions, including the following:
Continue Reading ONCA upholds employer for-cause termination for sexual harassment

Bill 27 Working for Workers Act 2021 and Disconnecting from Work Policies
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As a result of the Covid-19 pandemic, Ontario’s labour market has experienced significant disruptions and a permanently shifted work landscape. Employers are grappling with redefined work locations, rapidly changing public health standards, and the need for economic revitalization. As part of the province’s recovery scheme, Monte McNaughton, Minister of Labour Training and Skills Development, established the Ontario Workforce Recovery Advisory Committee (OWRAC). The Committee’s mandate is to “provide recommendations to position Ontario as the best place in North America to recruit, retain and reward workers.” Its work centers around three pillars: economic recovery, strengthening Ontario’s competitive position, and supporting workers. Integral to the Committee’s work were community stakeholder consultations involving workers, employers, and unions, which invited submissions by July 31, 2021. 
Continue Reading Bill 27 – Working for Workers Act, 2021 and Disconnecting from Work Policies

trauma-informed workplace investigationsJoin us for Part 2 of this webinar series. Dealing with Harassment, Bullying and Sexual Violence in the Workplace, as we do a deep dive into Trauma-Informed Workplace Investigations (TII).  SpringLaw’s Flo Vineberg and Emily Siu will discuss the role of a Trauma-Informed Workplace Investigator and best practices for employers.

Date: Wednesday, November 17, 2021
Time: 10:30-11:00 am EST
Register: Click here!Continue Reading Free webinar: Trauma-Informed Workplace Investigations

Free webinar: Dealing with Harassment, Bullying, and Sexual Violence in the WorkplaceOctober is National Bullying Prevention Month. Harassment, bullying, and sexual violence in the workplace continue to persist. Last month, Western University dealt with several sexual assault allegations. What does this mean for employers?

Join SpringLaw’s Flo Vineberg and Emily Siu as they discuss sexual assault, harassment, and violence in the workplace, as well trauma-informed workplace investigations.

Date: Wednesday, October 20, 2021
Time: 10:30-11:00 am EST
Register: Click here!Continue Reading Free webinar: Dealing with Harassment, Bullying, and Sexual Violence in the Workplace

Bill 132 - Sexual Violence and Harassment Action Plan Date
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In response to the provincial government’s March 2015 report entitled  “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment,” the Ontario legislature passed Bill 132 – Sexual Violence and Harassment Action Plan in March 2016, which entered into force in September of that year. This Bill amended Ontario’s Occupational Health and Safety Act (OHSA), establishing specific requirements with respect to sexualized harassment and violence prevention in Ontario’s workplaces. In turn, employers have since had additional responsibilities to understand, address and eliminate workplace sexual harassment and violence beyond previous measures. This requires sound and updated workplace policies, sufficient workplace training, and additional competencies to ensure compliance with the OHSA via, amongst other things, informed and diligent workplace investigations.
Continue Reading Understanding your employer obligations under Bill 132 – Sexual Violence and Harassment Action Plan

Workplace harassment and the employer’s duty to correct it
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Occupational health and safety legislation in Ontario protects workers from the risk and harm of harassment at work. Under the Occupational Health and Safety Act (OHSA) employers have a legal duty to guard against and correct workplace harassment no matter how small the team. 

Here are some things to keep in mind regarding workplace safety and the employer’s obligations. 

Harassment Can Go By Many Names

Bullying is harassment. Employees sometimes think that the form of harassment they are facing is less serious than the harassment that OHSA targets. But any euphemism for harassment, like bullying or mocking, doesn’t make it less harmful to workplace health and safety. Even lighthearted bullying can count as harassment under OHSA and the employer will have a duty to prevent and act on it. OHSA says that:
Continue Reading Workplace Harassment: the Employer’s Duty

Employee drug and alcohol testing in the workplace
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Last week, we discussed various options for accommodations that employers can consider for employees with substance dependence-related disabilities. We then delved into general rules around drug and alcohol testing of employees and briefly outlined some differences between drug and alcohol tests. In the last part of our series on substance addictions at work, we will touch on whether employers can conduct drug tests on specific employees, as well as random drug testing in the workplace. We’ll also cover some alternatives to drug and alcohol testing and highlight the human rights issues at play when it comes to the subject of employee substance use. 

Drug & Alcohol Testing of a Specific Employee

Due to concerns over potential intrusion on privacy and human rights issues, drug and alcohol testing is generally justified in Canada where employees are in safety-sensitive positions and one of the following situations applies:
Continue Reading Substance Addictions at Work: A Guide for Employers – Part 4/4

addiction accommodations at work
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Last week, we discussed the employer’s duty to accommodate employees with disabilities, which includes drug and alcohol dependence. Employers have a duty to accommodate employees up to the point of undue hardship. This is a high bar!  So employers need to give a lot of thought to what they can possibly do before deciding it’s not possible to accommodate an employee.  Employers will normally have at least a few options for employee accommodations, ranging from leaves to addictions support programs, which we will discuss below. We will also cover drug and alcohol testing in this blog. 

Leaves

Very often, the accommodation that an employee suffering from an addiction requires is a leave. Many medical notes recommend this option; should an employer encounter such a note, the employer can put the employee on an unpaid leave with continuation of benefits. The fact that the leave is unpaid can sometimes incentivize employees to recover and return to work sooner rather than later. The timeline of these types of leaves can be very long, unless the doctor makes clear that the employee will never be able to do the job again. In these scenarios, the employer may have to accommodate the employee to work in another position within the company. 
Continue Reading Substance Addictions at Work: A Guide for Employers – Part 3/4