Workplace violence and harassment are issues that have received increased media attention in recent years. Presumably in the context of this heightened awareness, federal and provincial legislators have adopted and/or amended legislation and regulations to provide a better framework or specify the employer’s obligations in these matters.

In addition, COVID-19 has forced many employers to move all or part of the “workplace” to their employees’ homes, which has unfortunately coincided with an increase in rates of domestic violence across Canada.

In this context of legislative change and the rise of remote work, we offer an overview of what obligations, if any, employers have towards their employees who are living in situations of domestic (or family) violence in light of the pre-existing legal framework as well as the coming into force of new provisions.

General pre-existing obligations to ensure the health and safety of workers

The Canada Labour Code (the “CLC”) [1], which applies to federally regulated employers, provides that employers have a general obligation to ensure that their workplaces protect employees in matters of occupational health and safety, including the prevention of harassment and violence - defined as “any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment”.[2] This notion of harassment and violence includes all types of harassment and violence, including sexual harassment, sexual violence and domestic violence,[3] arising out of, linked with or occurring in the course of employment governed by the CLC.[4]

Similarly, the Act respecting occupational health and safety (the “AOHS”)[5] specifies that every employer under provincial jurisdiction must also take the necessary measures to protect the health and ensure the safety and physical and psychological integrity of workers in the workplace,[6] which includes violence and harassment.[7] In addition, the Act respecting labour standards (the “ALS”)[8] defines harassment as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee”.[9]

In light of the foregoing, it must be emphasized that under the CLC, the AOHS and the ALS, the identity of the perpetrator of the wrongdoing that may lead to harassment, violence or even result in some form of danger is not a factor in determining whether the general obligations set out above are triggered for the employer. In other words, the employer has a responsibility to ensure the protection and safety of an employee, regardless if the person committing the act of violence or harassment is the employer’s client, supplier or even an abusive spouse, if and when the occurrence of harassment or violence is of a nature that is employment-related and/or creates a harmful work environment.

What about domestic violence that takes place outside the workplace?

In essence, the CLC and the AOHS define the workplace as the place where the employee performs work for the employer.[10] Thus, a workplace includes not only the employer’s establishment, but also the employee’s home or any place where the employee performs work.[11] Moreover, since October 6, 2021, the AOHS makes it clear that the residence or registered address is indeed a workplace.[12]

It follows from the above that the aforementioned general obligation of prevention, which is triggered regardless of the identity of the respondent, for example, is also applicable with regard to the residence of an employee who is in a remote work situation.^[13] It being understood, however, that the employer’s obligation to prevent and end violence or harassment is limited to what is directly related to the job.[14]

A parallel, albeit imperfect, with the above finding is the case of A.B. v. 9405-2651 Québec inc. (Restaurant Pho-King-Bon),[15] in which a restaurant manager was found to have touched one of his employees while they were at his cottage. In this context, the tribunal reiterates that the fact that the assault took place outside the workplace and during working hours does not affect the application of the ALS. Similarly, in a case where an employee challenged his dismissal for having made threats against a colleague on a chat room, the arbitrator concluded that although the dispute was private, it concerned the victim’s relationship with her co-workers.[16] As for the CLC, it states that the employer’s duty to prevent violence and harassment is limited to incidents “linked with or occurring in the course of employment”.^[17]

In connection with the above decisions, it should be reiterated that an employer’s disciplinary power may extend to actions taken outside the workplace or working hours if such actions are work-related.[18]

On the other hand, it should also be noted that the aforementioned general obligations incumbent on employers under the CLC, the AOHS or the ALS are obligations of means and not of results.[19] Thus, the employer must take reasonable measures, but is not obliged to demonstrate that these measures have had the desired result.

Necessary measures: new legislation targeting violence and harassment

With respect to these measures that must be put in place by the employer, both the federal and provincial governments have recently passed new legislation that makes their form and substance explicit.

First, the Work Place Harassment and Violence Prevention Regulations adopted under the CLC and effective January 1, 2021, promulgate new requirements that include mandatory training requirements, reporting requirements, harassment and violence prevention, an initial assessment of the workplace for harassment and violence (in which domestic violence as an external factor) and the minimum mandatory content of the policy.[20] Several elements must be included in the previous policy such as a summary of the training that will be provided, the support measures available to employees and a summary of emergency measures.[21] Consequently, a reporting employer subject to the regulations must, in the event of work-related domestic violence, conduct a risk assessment and develop a workplace safety planning model as soon as it is made aware of the situation.[22] In addition, the employer must refer the victim to support resources.[23]

At the provincial level, on September 30, 2021, the Quebec government adopted the Act to modernize the occupational health and safety system, which aimed at modernizing the AOHS. In the context of this new legislative landscape, it is now specified that the employer has the obligation to take the necessary measures to ensure the protection of the employee in the workplace in the event of a situation of domestic violence when the employer knows or ought reasonably to know that the employee is exposed to this violence.[24] It should be noted that we anticipate that the language retained in the AOHS suggests that the provincial regime requires the employer to be more proactive in ensuring that its obligations are met (“knows or ought reasonably to know” versus “made aware”).

In addition, still in the context of the amendments to the AOHS, the employer must now develop a prevention program or action plan for establishments with 20 employees and more, which must include the identification and analysis of risks related to violence, including domestic violence, as well as measures and priorities for action to eliminate or, failing that, to control the risks identified.[25] As a result, risks related to domestic violence must now be formally included in occupational health and safety training and information programs at both the federal and provincial levels.[26]

Finally, we recall that since June 12, 2018, the ALS provides that an employee who is the victim of domestic violence may be absent from work for a maximum of 26 weeks over a 12-month period and up to 104 weeks if he or she is otherwise the victim of bodily harm.[27] For its part, since September 1, 2019, the CLC grants employees who are victims of domestic violence the right to take 10 days of leave per year.^[28] In addition, in certain cases, these employees can obtain compensation for part of their leave.^[29]

Conclusion: measures that must be put in place by employers in relation to domestic violence

• At the federal level: the employer must specifically conduct an initial assessment and risk assessment of harassment and violence (which includes domestic violence), adopt a harassment policy that complies with the mandatory minimum content, implement a safety plan for victims, intervene when it is made aware of a situation of domestic violence and provide support resources to victims.
• At the provincial level: the employer must specifically adopt a harassment policy, intervene when it has reasonable knowledge of domestic violence, include a component about domestic violence in the workplace in safety training program and for any establishment of 20 or more employees, implement a prevention program or action plan that considers domestic violence.

Furthermore, in order to be able to demonstrate that measures have been taken to prevent the occurrence of work-related domestic violence, it is recommended that the following measures be evaluated:[30]

• Ensure that establishments under the employer’s control are set up in such a way as to ensure the protection of employees (e.g. access control to the workplace, security cameras, panic button, etc.);
• Ensure the physical safety of the employee who is a victim of domestic violence by modifying the work organization and/or allowing him/her to work from the employer’s office while securing the premises to prevent unauthorized entry;
• Educate employees and raise their awareness to the problem of domestic violence and its manifestations by making information on this subject readily available and by offering training sessions. This allows employees, executives and managers to be able to identify the signs of domestic violence and be better equipped to deal with it;
• Establish communication channels to make it easy for victims of domestic violence to seek help, particularly when being he or she is confined or working from home. For example, employers can establish secret communication codes or emergency telephone numbers;
• Adopt an attitude of openness and respect at the pace of the employee who is the victim of domestic violence and ensure that confidential reporting is a possibility; and
• Discuss domestic violence in order to remove the stigma associated with it and to make victims more comfortable in speaking out.

For more information on employment issues under COVID-19, please visit our Business Transformation Hub on COVID-19 and our McCarthy Tétrault Employer Advisor. If you are an employer and have questions or would like our assistance, please contact any member of our National Labour & Employment Group.

[1]Canada Labour Code, RSC 1985, c L-2 [CLC]

[2]Ibid, art 124, 122 (1).

[3] «  Requirements for employers to prevent harassment and violence in federally regulated workplaces», Government of Canada (August 29, 2022), online, : <Requirements for employers to prevent harassment and violence in federally regulated workplaces - Canada.ca>[Federal requirements];see also Work Place Harassment and Violence Prevention Regulations (SOR/2020-130), Governement of Canada, art, 1 [Regulations]; Work Place Harassment and Violence Prevention (HVP) - 943-1-IPG-104, Government of Canada (August 25, 2022), art. 5, online: <https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/104-harassment-violence-prevention.html >[Guidelines].

[4] CLC, supra note 1, art. 122.1 (“The purpose of this Part is to prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this Part applies”).

[5]Act respecting occupational health and safety, CQLR c S-2.1 [AOHS]

[6]Ibid, art. 51 (This now explicitly mentions domestic violence, see art. 51 (16)).

[7]Ibid, art. 51 (16) ; see also Solutions E-Cycle inc. et Commission de la santé et de la sécurité du travail, 2015 QCCLP 500; Commission scolaire de Montréal, 2020 QCTAT 825 (CanLII) (These two decisions deal with violence and harassment in the workplace in the context of section 51 of the LS).

[8]Act respecting labour standards, RLRQ c N-1.1 [ALS].

[9]Ibid, art. 81.18

[10] AOHS, supra note 5, art.1 ; CLC, supra note 1, art.122 (1)

[11] See Club des petits déjeuners du Québec et Frappier, 2009 QCCLP 7647.

[12] AHOS, supra note 5, art. 5.1 ; Regulations, supra note 3, art. 1, Guidelines, supra note 3, art. 1.

[13] AHOS, supra note 5, art. 5.1

[14] See B. c. 9405-2651 Québec inc. (Restaurant Pho-King-Bon), 2022 QCTAT 2401 , G. S… c. H. F, 2007 QCCRT 295 (CanLII);

[15]2022 QCTAT 2401,para 32.

[16] See Syndicat des travailleuses et travailleurs de resto-casino de Hull et Hilton Lac Leamy, D.T.E. 2004T-811 (T.A.)

[17] CCT, supra note 1, art. 122.1

[18] G. S… c. H. F, supra note 14, para 69.

[19]Association accréditée SPGQ et Commission des normes, de l'équité, de la santé et de la sécurité du travail, 2020 QCTAT 1789, aux paras 51-67.

[20] See Regulations, supra note 3, art, 5 ; Guidelines, supra note 3, art. 5.

[21] Regulations, supra note 3, art. 10 (2).

[22] See Guidelines, supra note 3, art. 1, art. 5 (An employer who is “made aware” of an incident must act); Regulations, supra note 3, art. 8 (b).

[23] See Regulations, supra note 3, arts, 20-22 ; Guidelines, supra note 3, art. 20-22.

[24] AHOS, supra note 5, art. 51 (16)

[25]Ibid, art. 59 (5)

[26] AHOS, supra note 5, art. 59 (5).

[27] See ALS, supra note 8, art 79.1

[28] See CLC supra note 1,  art 206.7.

[29]Ibid, art 206.7 (2.1).

[30] Federal requirements, supra note 15 ; « Violence conjugale, familiale ou à caractère sexuel », CNESST (August 25, 2022), online:  htps://www.cnesst.gouv.qc.ca/fr/prevention-securite/identifier-corriger-risques/liste-informations-prevention/violence-conjugale-familiale-caractere-sexuel> (only available in French).