Amendments to the occupational health and safety regime coming into force this fall

Almost a year ago, on October 6, 2021, the Act to modernize the occupational health and safety regime received assent.

Some of the many changes imposed by this legislation will come into effect on October 6, 2022, one year after its assent.

As a result, we have identified the following key changes to which employers should pay particular attention this fall.

Temporary assignment of work

The employer of a worker who has suffered an employment injury must now use the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the CNESST) form for purposes of a temporary assignment.

A temporary assignment is authorized if the health professional in charge of the worker believes that:

• the worker is reasonably able to perform this work;
• this work does not involve any danger to the worker’s health, safety and physical and psychological integrity given its injury;
• this work is beneficial to the rehabilitation of the employee.

The employer must receive a favourable opinion from the health professional in charge of the worker in order to move forward with the temporary assignment. It should also be noted that the employer is required to submit the form to the CNESST even if the health professional's opinion regarding the proposed assignment is not favourable. Refusal of a temporary assignment cannot always be contested by the employer.

The health professional in charge shall now indicate on the form their findings regarding the worker’s temporary  physical or psychological functional limitations.

In addition, when an employer offers a worker a temporary assignment that involves fewer hours than the worker's regular job, the employer must then indicate on the temporary assignment form the option the employer is choosing for the payment of wages and must notify the CNESST thereof before the temporary assignment begins.

In this regard, two options are available to the employer:

• The employer may pay the worker the same wages and benefits the worker would have received but for the employment injury:
  • It should be noted that, in this case, the employer has 90 days after the end of each pay period to apply to the CNESST for reimbursement of the net salary paid for the hours paid but not worked, up to the maximum amount of the income replacement indemnity to which the worker would have been entitled but for this assignment.
• Otherwise, the employer may pay the worker the same wages and benefits, but only for the hours worked. The CNESST will then pay the worker an amount corresponding to the income replacement indemnity to make up the difference between the amount of the income replacement indemnity to which the worker would have been entitled but for this assignment, and the net salary paid to them by the employer for this work.

The option selected can be changed only once for the same temporary assignment.

Rehabilitation before consolidation of the injury

Although in practice rehabilitation prior to consolidation already existed, it is now expressly provided for in the Act respecting industrial accidents and occupational diseases (the AIAOD).

In this regard, when the claim is accepted, the CNESST may grant the worker rehabilitation measures adapted to their state of health in order to favour their return to work, before the consolidation of their employment injury.

The purpose of these measures is, among other things, to allow the worker to develop the ability to gradually return to their duties. Terms and conditions are set out in the legislation for the payment of wages by the employer during this period. Before granting or implementing a rehabilitation measure prior to consolidation, the CNESST must submit the measure to the health professional in charge of the worker, unless the measure has no effect on the worker's state of health.

When the CNESST considers, before consolidation, that the worker could be entitled to a personal rehabilitation program due to the nature of their injury, it may grant the worker rehabilitation measures for a purpose other than to favour the worker’s vocational reintegration. Once again, the CNESST must submit these measures to the health professional in charge.

Rehabilitation after consolidation of the injury

A worker who, as a result of an employment injury, suffers permanent physical or psychological impairment, is entitled to the rehabilitation required by their condition in view of their social and professional reintegration. To this end, the CNESST may, among other things, use means to provide the worker with a home, a vehicle or recreational equipment adapted to their condition.

The legislation now provides that, when required by the CNESST in the preparation and implementation of the personal rehabilitation program, the employer must cooperate.

In addition, if it deems it necessary, the CNESST may authorize a gradual return to work, with the employer, for the worker who may or may not still have a permanent impairment, in order to facilitate their professional reintegration. If this is the case, the CNESST grants financial support to the employer for a maximum period of eight weeks. Once again, terms and conditions are set out in the legislation for the payment of wages by the employer during this period.

It should be noted that measures relating to physical rehabilitation will be included in Chapter V of the AIAOD, which is dedicated to health services. Also, social rehabilitation measures will be determined by regulation at a later date, which is not yet the case as of the present date.

Income replacement indemnity

Henceforth, a worker who suffers an employment injury while at least 60 years of age is entitled to full income replacement indemnity until age 65 when:

• unable to perform their job with the employer;
• the employer does not have suitable employment to offer them.

This allowance will then be gradually reduced until the age of 68.

Right to return to work

The worker absent from work due to an occupational injury:

• continues to accumulate seniority within the meaning of the applicable collective agreement, if any, and continuous service within the meaning of that agreement or of the Act respecting labour standards;
• continues to participate in the institution's pension and insurance plans, provided they pay their share of the contributions due and the employer pays its share.

As of October 6, 2022, these parameters apply until a decision by the CNESST provides for the reinstatement of the worker with their employer.

Duty to accommodate

The case law principles relating to the duty to accommodate imposed on the employer, in favour of the employee, are now integrated into the AIAOD.

This amendment enhances the existing right to return to work to facilitate the worker’s reinstatement in their employment, an equivalent employment or a suitable employment.

From the outset, the employer has a duty of reasonable accommodation under the provisions of the Charter of Human Rights and Freedoms in the event of an employment injury. The AIAOD must therefore be interpreted in light of this duty.

Consequently, despite the existence of a time limit for the worker to exercise their right to return to work, the expiry of this time limit does not avail the employer of his duty to accommodate.

To this end, the AIAOD introduces two presumptions:

• If the worker regains capacity before the expiration of the right to return to work time-limit, this presumption is absolute, since the employer is deemed to be able to reinstate the worker;
• In the event that the worker regains capacity after the expiration of the right to return to work time-limit, it is a simple presumption, since the employer is presumed to be able to reinstate the worker.

In all cases, the employer is required to provide the information and documents necessary to determine the worker's capacity to carry on their employment, an equivalent employment or a suitable employment. In addition, the CNESST may order an employer who refuses to cooperate in the return-to-work process or to reinstate the worker in their employment, an equivalent employment or a suitable employment available despite a decision to that effect, to pay an administrative monetary penalty. The penalty is equivalent to the income replacement indemnity to which the worker would have been entitled during the period the employer was in default. The amount of the penalty can be up to a maximum of one year's income replacement indemnity.

It should be noted that the employer will not be obliged to reinstate the worker if such reinstatement would cause the employer undue hardship. The parameters developed by the case law on this issue also apply in the context of an employment injury.

Bureau d’évaluation médicale

The CNESST must transmit, without delay, the contestation and the worker's complete medical file to the Bureau d'évaluation médicale (the BEM). The purpose of this amendment is to ensure that the medical record is sent to the BEM at the same time as the contestation, which was not the case before.

In this regard, when the BEM member determines the date of consolidation, they must now rule on the existence of functional limitations and on the percentage of permanent impairment of the worker's physical or psychological integrity. However, they are not required to rule on these matters if medical reasons prevent them from doing so. They must, however, explain these reasons in their opinion.

Finally, when the BEM member is of the opinion that the injury no longer requires care and treatment, they may determine the date of consolidation, in which case they will also have to rule on the functional limitations and the percentage of permanent impairment.