Legislation proposes new rules around domestic violence

A new Bill is gaining momentum that, if passed, will require employers to keep up with new training requirements and establish a new paid leave for employees.  Bill 26 – “Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016” recently passed second reading and is pending review by the Standing Committee in the Legislative Assembly.

Bill 26, in its’ current form, will amend the Occupational Health and Safety Act and Employment Standards Act, 2000. The bill was introduced into the legislature on September 27, 2016 by the NDP MPP from London West Peggy Sattler. The focus of the bill is providing a combination of paid and unpaid leave to employees that suffer domestic or sexual violence personally or suffered by their children. The following is a summary or the proposed amendments. 

Occupational Health and Safety Act

The new bill will require employers to ensure supervisors and workers are provided with adequate information and training on domestic violence in the workplace and sexual violence in the workplace. This training would be integrated within Part III.0.1 of the OHSA alongside other employer training obligations related to workplace violence and workplace harassment. 
Employment Standards Act, 2000

The Employment Standards Act, 2000 (“ESA”) currently offers a number of unpaid, job protected leaves to employees and this new bill will introduce a new, temporarily paid, leave for employees when they or their children have experienced domestic or sexual violence. The proposed amendments would also require employers to accommodate employees that have experienced domestic or sexual violence.

Bill 26, in its current form, would add the following definitions to Part I of the ESA:
“domestic violence” means,

(a)  an act of abuse between an individual and a current or former intimate partner, between an individual and a child who resides with the individual, or between an individual and an adult who resides with the individual and who is related to the individual by blood, marriage, foster care or adoption, whether the abuse is physical, sexual, emotional or psychological, and may include an act of coercion, stalking, harassment or financial control, or
(b)  a threat or attempt to do an act described in clause (a);

“intimate partner” includes a spouse, boyfriend or girlfriend, dating partner, sexual partner or an individual with whom one has a relationship similar to the relationships enumerated in this definition;

“sexual violence” means any conduct of a sexual nature or act targeting an individual’s sexuality, gender identity or gender expression that is committed, threatened or attempted against an individual without the individual’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism, sexual exploitation and sexual solicitation, and may include an act that occurs online or in the context of domestic or intimate partner relationships;

The above definitions, if met, will entitle an employee to 10 days of paid leave per calendar year and additional unpaid time for an unspecified duration. The restrictions for this leave are that the time required must be “reasonable” and serve one or more of the following purposes:

1. To seek medical attention for the employee or the employee’s child in respect of a physical or psychological injury or disability caused by the violence.
2. To obtain services for the employee or the employee’s child in respect of the violence from a victim services organization, domestic violence shelter, rape crisis centre, sexual assault centre or other social services program or community agency.
3. To obtain psychological or other professional counselling for the employee or the employee’s child in respect of the violence.
4. To relocate temporarily or permanently for the purpose of making future violence against the employee or the employee’s child less likely.
5. To seek legal or law enforcement assistance for the employee or the employee’s child, including preparing for or participating in any civil, criminal or administrative proceeding related to or resulting from the violence.
6. To do anything else prescribed by the regulations.

In addition to a combination of paid and unpaid leave, employers would be required to accommodate employees in the workplace by providing them alternative work hours and work location. The employer is permitted to require reasonable evidence to support a leave or a request for accommodation and the normal limits with respect to an accommodation request (i.e. undue hardship) would apply.

This new leave would be in addition to any of the following leaves already available to employees pursuant to the ESA:

• Family Medical Leave
• Family Caregiver Leave
• Critically Ill Child Care Leave
• Crime-related Child Death or Disappearance Leave, and
• Personal Emergency Leave

 
Bill 26 must still undergo further review before it receives royal assent, and CCP will ensure employers remain informed on the status of this pending legislation. Click here for a list of lawyers that are ready and able to assist you with understanding your obligations with respect to the ESA mandated leaves of absence.

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