Bill 42: The government proposes measures to fight psychological harassment and sexual violence in the workplace

On November 23, the Quebec Minister of Labour tabled Bill 42, An Act to prevent and fight psychological harassment and sexual violence in the workplace.¹ This bill proposes amendments to several labour laws, including the Act respecting industrial accidents and occupational diseases² (the AIAOD), the Labour Code,³ the Act respecting labour standards⁴ (the ALS) and the Act respecting occupational health and safety⁵ (the AOHS), in order to strengthen the protection of workers in the workplace and facilitate the exercise of the recourses intended to ensure this protection.

The following is an overview of the main changes contemplated by the bill. Please note, however, that these changes are not yet in force, as the bill is only at the introductory stage.  

A definition of "sexual violence" added to the AOHS

Section 1 of the AOHS will introduce the following definition:

"Sexual violence": any form of violence targeting sexuality or any other misconduct, including unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly, including violence relating to sexual and gender diversity.⁶ 

As this definition specifically encompasses all speech and language of a sexual nature, even if isolated, it will be essential for employers to treat any comments of a sexual nature that may occur in the workplace seriously.

Industrial accidents and occupational diseases

New presumptions for victims of sexual violence

In order to alleviate the burden of proof of the occurrence of an industrial accident or occupational disease, the following presumptions will be added⁷:

• Where a worker is the victim of sexual violence at the hands of their employer, one of its executive officers in the case of a legal person, or a colleague in the same establishment, any injury or illness resulting from this violence will be presumed to have occurred "out of" or "in the course of" work, unless it occurs in a strictly private context.
• Any disease arising within three months of the sexual violence suffered by the worker in the workplace will be presumed to be an "employment injury".

Thus, a worker who is a victim of sexual violence need only demonstrate that the conditions for the application of one of these presumptions have been met in order for the employment injury to be recognized. The onus will then be on the employer to reverse this recognition.

Offences involving access to medical records 

The employer's right to access a worker's medical record held by the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) concerning an employment injury is already reserved exclusively for the health professional designated by the employer.

The bill specifies that the information that the designated health professional may disclose to the employer when reporting on a medical file must be limited to that which is strictly necessary to provide the employer with a summary and an opinion enabling them to exercise their rights.⁸ 

Illegal disclosure of information by a health professional, as well as obtaining or attempting to obtain a medical record by an employer, will constitute offences punishable by a fine of $1,000 to $5,000 in the case of a natural person, and $2,000 to $10,000 in the case of a legal person.⁹ 

Time limit for filing a claim extended for victims of sexual violence

The time limit for filing a claim with the CNESST for an occupational injury or disease resulting from sexual violence will be extended from six months to two years.¹⁰ 

Exception to the imputation rule in cases of sexual violence committed by the employer

Where the sexual violence giving rise to the employment injury is committed by the employer, one of their representatives in their relations with the workers, or an executive officer of the legal person, the costs of the benefits associated with this injury will be borne exclusively by the employer of the worker who is the victim. In all other cases, these costs will be imputed to the employers of all the units.¹¹ 

Labour standards

Enhanced obligations for the prevention and management of psychological harassment

The employer's obligation to prevent and manage psychological harassment will extend to harassment from "any person" including, for instance, a customer or supplier of the employer.¹² The requirements pertaining to the policy for the prevention and management of psychological harassment that the employer must  put in place will also be enhanced by the inclusion of specific elements to be addressed in this policy.¹³   

Failure to comply with these legal obligations¹⁴ could result in substantial financial penalties. For a first offence, a fine ranging from $600 to $6,000 will apply, while for a repeat offence, the fine may be as high as $12,000.¹⁵ 

Limited application of amnesty clauses to situations of workplace violence

A new provision will limit the effects of amnesty clauses in cases of workplace violence. Employers will be permitted to take into account previous disciplinary measures imposed on an employee for physically or psychologically violent behaviour, including sexual violence, when imposing a new sanction for such behaviour, even in the presence of an amnesty clause.¹⁶ 

This provision will therefore take precedence over the terms of a collective agreement negotiated between the employer and the union in cases of repeated physical, psychological or sexual violence.

Confidentiality of settlement agreements following a complaint of psychological harassment

Where a settlement is reached following a psychological harassment complaint, the transaction and release generally contain a clause by which the parties undertake to preserve the confidentiality of the negotiations and the terms of the settlement. The parties will now have the option to agree to waive this confidentiality undertaking, and specify when this waiver will take effect.¹⁷ 

Health and safety

Certain provisions of Bill 42 will align with the forthcoming legislative changes¹⁸ brought about by the Act to modernize the occupational health and safety regime.¹⁹ 

It is also worth noting that the employer's obligation to prevent and eliminate sexual violence is already included in the AOHS.²⁰ The bill will, however, add, that the employer must "take any other measure that may be determined by regulation" to fulfill this obligation.²¹ It can therefore be expected that a subsequent regulation will provide more detailed guidance on how employers may practically meet this obligation, which will be crucial to avoid potential prosecution for non-compliance, as well as significant financial penalties.²² 

Conclusion

This overview of the legislative changes contemplated by Bill 42 reflects the Minister of Labour's desire to strengthen the protection of workers against psychological harassment and sexual violence in the workplace. Currently at the introductory stage, the bill will need to pass through several stages before being enacted into law. If adopted, it will impose more stringent obligations on employers with respect to prevention and protection, coupled with harsher penalties for non-compliance. We will closely monitor its legislative progress and keep you updated on any new developments.