New Brunswick Workplace Regulation to Prevent Violence and Harassment

New Brunswick violence and harassment provisions under the Occupational Health and Safety Act and General Regulation 91-191 aimed at identifying and preventing violence and harassment in the workplace will take effect September 1, 2018. Currently, New Brunswick is the only Atlantic province that does not specifically address the issue of workplace violence in its health and safety laws. All Atlantic provinces do not currently address harassment in health and safety laws. New Brunswick will be the first.

While certain occupational groups, such as health-care workers, tend to be more at risk of workplace violence or harassment, these new regulations will impact all workplaces.

Definition of Workplace Harassment and Violence

The regulation define what harassment and violence means in the context of workplace health and safety. These definitions include:

“Harassment,” in a place of employment, means any objectionable or offensive behaviour that is known or ought reasonably to be known to be unwelcome, including bullying or any other conduct, comment or display made on either a one-time or repeated basis that threatens the health or safety of an employee, but does not include reasonable conduct of an employer in respect of the management and direction of employees at the place of employment.

“Violence,” in a place of employment, means the 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.

Moreover, the regulation will address problematic workplace conduct. This can include bullying, physical violence, verbal abuse, sexual harassment and other threatening behaviours.

The regulation requires all employers to establish written codes of practice (a.k.a. workplace policies) to prevent and minimize the risk of workplace violence and harassment to protect workers.

Before establishing the code of practice to prevent/minimize workplace violence, the employer must:

• Conduct a risk assessment of violence at the place of employment.
• Consult with the committee or health and safety representative, if any, or with employees if there is no committee or representative, when assessing the risk of violence.

The risk assessment is not required with workplace harassment.

The regulation dictates the elements to consider when conducting a risk assessment and requires the employer to retain the results and make the results available to the committee or health and safety representative, if any, and to any WorkSafeNB officer on request. In addition, the risk assessment results must be updated when:

• there is a change in conditions at the place of employment, or
• ordered to do so by an officer.

Code of Practice to Prevent Workplace Violence

If the results of the risk assessment identify a risk of violence, the employer must establish a written code of practice to mitigate the risk of violence at the place of employment and to ensure the health and safety of employees, to the extent possible.

The code of practice includes such things as:

• an inventory of the locations at which and circumstances in which (i) violence may reasonably be expected to occur, and (ii) the code of practice might be applicable;
• 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 work activities that place employees at risk of experiencing violence;
• the identity of any person responsible for implementing the code of practice; and
• a statement that an employee will report an incident of violence to the employer as soon as circumstances permit.

The code of practice must also set out the actions and measures the employer will take to mitigate the risk of violence identified in an assessment, including the methods and equipment to be used and the procedures to be followed, among others.

Code of Practice to Prevent Workplace Harassment

As for the code of practice to prevent workplace harassment, the employer must consult with the committee or health and safety representative, if any, or with employees if there is no committee or representative, in establishing and implementing the code of practice to prevent/minimize workplace harassment. The code of practice to prevent/minimize workplace harassment must include the following:

• a statement that every employee is entitled to work free of harassment;
• the identity of any person responsible for implementing the code of practice;
• a statement that an employee must report an incident of harassment to the employer as soon as circumstances permit;
• the procedure the employer shall follow to investigate and document any incident of harassment 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;
• the follow-up measures to be used with affected employees; and
• the identification of training needs.

How the Workplace Violence and Harassment Prevention Codes Work

• An employer must ensure that the codes of practice (violence and harassment) are, when followed, sufficient to provide for the health and safety of employees at the place of employment to the extent possible.
• An employer must ensure that copies of the codes of practice are readily available to a WorkSafeNB officer and to employees on request.
• An employer must ensure that the codes of practice are implemented and adhered to at the place of employment. An employee must adhere to the code of practice as well.
• An employer must not disclose the name of a person who is involved in an incident of violence or harassment or the circumstances related to the incident, other than when the disclosure is (a) necessary in order to investigate the incident; (b) required in order to take corrective measures in response to the incident; or (c) required by law.
• An employer must implement a training program in respect of the established codes of practice for each employee and for each supervisor who is responsible for an employee. The training record for each employee must be made available to a WorkSafeNB officer on request.
• An employer must review the established codes of practice at least once each year in consultation with the committee or the health and safety representative, if any, or with employees if there is no committee or representative.
• An employer must update the codes of practice (a) when there is a change in conditions at the place of employment, or (b) when ordered to do so by a WorkSafeNB officer.

Last Words

Employers in New Brunswick can be proactive by educating themselves with the new requirements before September 1, 2018.

All employers should start by conducting a risk assessment of their workplace to identify and address the risks of violence in the newly created or reviewed violence prevention code of practice (i.e., workplace prevention policy).

If the employer already has a workplace violence and/or harassment policy, it should be reviewed to ensure compliance with the new requirements.

The failure to adhere to the new requirements under the Occupational Health and Safety Act and General Regulation 91-191 may result in an order for compliance being issued by a WorkSafeNB officer.