On October 27, 2020, Bill 59, or the Act to modernize the occupational health and safety regime (the Bill), was presented in the National Assembly of Quebec.
The Bill provides for sweeping amendments to the regime that currently exists under the Act respecting industrial accidents and occupational diseases (AIAOD) and the Act respecting occupational health and safety (AOHS). Employers, however, will no doubt wonder upon reading the Bill if there is anything in it for them…
Indeed, not only is the Bill virtually one-sided (granting rights solely to workers and the Commission des normes, de l’équité, de la santé et la sécurité du travail (CNESST)), in many ways it also undermines the fundamental rights of employers, notably their management and financing rights.
Employer management rights
As regards the negative impact on employer management rights, one example would be the definition of pre-injury employment (the notion of “his employment” provided for in section 2 of the Bill). Here, the Bill refers to the employment held by the worker when he suffered his employment injury. This is a very curious choice, given that a worker may hold a temporary position at the time of the employment injury (for example, he might be replacing a worker who is disabled or on vacation). Consequently, the worker suffering from an employment injury would have the right to be reinstated in a position he did not hold, which naturally poses a problem for the employer’s management of its workforce.
Latest developments in occupational diseases
The Bill enacts the Regulation respecting occupational diseases, where occupational diseases can now be found. Several types of cancer specific to firefighting work have been added. One major change can be found in Division VII of the regulation, which now recognizes “post-traumatic stress disorder” as an occupational disease, giving workers the possibility of benefiting from an occupational disease presumption in claims involving this diagnosis. Remember that until now, the AIAOD’s philosophy was to avoid confounding mental illnesses with occupational diseases. The Bill therefore represents a fundamental change to the regime as we now know it.
New accommodation powers for the CNESST
The Bill also grants the CNESST new and extremely broad powers over measures to accommodate workers who have suffered employment injuries. The rights at issue are essentially those provided for in section 36 of the Bill. For example, the CNESST is entrusted with proving the existence of undue hardship when evaluating whether a worker who suffered from an employment injury should be reinstated. Remember that, until now, only the Administrative Labour Tribunal had that power; the CNESST’s role was limited to reminding the parties of their obligation to implement an accommodation process. The list of accommodation powers conferred on the CNESST under this Bill is impressive, and even includes the right to obtain detailed descriptions of the jobs with the employer, the physical demands of those jobs, their potential availability, the work adaptation and reorganization possibilities and the provisions of the collective agreements in the case of unionized environments.
Moreover, section 37 of the Bill stipulates astonishing sanctions for employers that fail to comply with the legislative prescriptions regarding the reinstatement of workers who have suffered employment injuries. In such cases, employers can be ordered to pay, to the CNESST no less, a pecuniary sanction up to the income replacement indemnity to which the worker was entitled during the period in which the employer failed to comply. This will likely prove to be highly controversial.
New worker reinstatement presumption
Note, too, that section 36 of the Bill creates presumptions under which employers are presumed (even deemed, in some cases) to be able to reinstate workers who have suffered an employment injury. This is another example of the challenges employers will be facing if this Bill comes into force in its current form, especially in light of the sanctions described above to which they will be exposed if they fail to reinstate workers in compliance with the law.
New temporary assignment obligations
Section 42 of the Bill provides that attending physicians have the obligation to indicate the functional limitations resulting from the employment injury in the form prescribed by the CNESST. Without such details, the employer will not be authorized to proceed with the requested temporary assignment. Note that employers were hoping that a contestation process would be introduced for temporary assignments refused without grounds, but that did not happen.
Changes to the financing regime
In section 93, the Bill repeals the notion of “unduly burdened” employers from the AIAOD, a notion that essentially allowed for the costs allocated to an employer’s record to be shared in certain situations. This notion is replaced by a new section that integrates into the AIAOD an imputation policy that already exists within the CNESST. This policy, however, presents certain weaknesses and is not followed by our tribunals (section 96 of the Bill).
Also, section 329 of the AIAOD will become inapplicable for all practical purposes (section 97 of the Bill). Remember that in its current form, section 329 allows costs to be shared in the case of a worker already handicapped when his employment injury appears. The Bill is clearly more stringent as to the handicap required and provides that the section will only apply if the worker presents, before the injury, “a deficiency causing a significant and persistent disability and […] if he is liable to encounter barriers in performing everyday activities” (emphasis added). If we are to rely on the level of handicap required under the Bill, the scope of section 329 will be narrowed to a minute portion of workers in Quebec. In other words, virtually all cases of employment injury in Quebec will be excluded from section 329.
Changes affecting the AOHS
Lastly, the Bill makes several amendments to the AOHS. As indicated in the summary provided in the Bill’s introduction, the purpose is to apply the prevention and worker participation mechanism to all sectors of activities according to the size of each establishment and the risk level of the activities carried on there. The Bill also allows an employer to establish a single prevention program for all or part of its establishments where activities of the same nature are carried on and, in that case, to establish a single health and safety committee for those establishments (one of the few benefits the Bill affords employers).
In section 143, the Bill also amends section 51 of the AOHS (general obligations of employers) to provide for measures that ensure the protection of a worker exposed to a situation of spousal or family violence in the workplace. Hopefully, parliamentary proceedings will clarify the specific situations that are to be covered by this addition to the AOHS and circumscribe the measures that will allow employers to satisfy this new obligation.
What to expect
In closing, note that Quebec employers have been demanding several occupational health and safety amendments for quite some time now. An example of such a demand would be reducing the income replacement indemnity from 90% to 85% of the net salary or wages (as this would, among other things, reflect the reality in other Canadian provinces). It is certainly disappointing to see that these demands did not make their way into the Bill.
As the Bill is scheduled to undergo parliamentary proceedings and is likely to change, we will keep you informed of any developments.
For a full picture of the Bill, please feel free to contact us.
