Quebec Follows In Other Provinces’ Footsteps And Deploys An Arsenal Of Measures And Protections Against Psychological Harassment And Sexual Violence In The Workplace – Employee Rights/ Labour Relations

On March 22, the National Assembly passed Bill 42, An Act to
prevent and fight psychological harassment and sexual violence in
the workplace (hereinafter “Bill
42“), which has since been assented on March 27.

As a result, a number of laws regulating working conditions for
workers in Quebec and the corresponding obligations of employers
have been revised, with the clear aim of preventing and fighting
harassment (in all its forms), as well as ensuring greater
protection for workers in this respect, including regarding the
remedies relating to this protection.

Thus, the Act respecting industrial accidents and
occupational diseases (the
“AIAOD“), the Labour Code, the
Act respecting labour standards (the
“LSA“) and the Act respecting
occupational health and safety (the
“AOHS“) have been partially amended.

The purpose of this publication is therefore to provide an
overview of the main changes arising from Bill 42, as well as the
general considerations that employers will need to keep in mind in
that context.

In the context of industrial accidents and occupational
diseases

• Extension of the time limit for filing claims
  : Bill 42 extends from six (6) months to two (2) years the time
  limit for filing a claim with the CNESST for an employment
  injury resulting from sexual violence.




• The addition of legal presumptions : In order
  to lighten the burden of proof and facilitate recognition of an
  occupational injury resulting from sexual violence, the following
  legal presumptions have been introduced:




• Unless it occurs in a strictly private context, an injury or a
  disease resulting from violence of a sexual nature suffered by a
  worked and committed by his or her employer, one of its directors
  in the case of a corporation, or one of the workers whose services
  are used by this employer for the purposes of the same
  establishment, is presumed to have occurred “by reason
  of” or “in the course of” his or her work; and




• A worker’s disease that occurs within three (3) months of
  being subjected to sexual violence in the workplace is presumed to
  be an employment injury.




• Imputation of the costs of benefits due as a result of
  sexual violence : When the sexual violence in question has
  been committed by the worker’s employer, a director in the case
  of a corporation, or a representative in their relations with
  workers, the costs will be borne exclusively by the employer of the
  victim.




• Limited access and penalties for unlawful disclosure of
  medical records: As it is already the case, access to
  workers’ medical files held by the CNESST is limited
  to health professionals designated by employers. Bill 42 specifies
  that information shared with employers must be limited to what is
  strictly necessary to provide them with an opinion and summary
  allowing them to exercise their rights. Failure to comply with such
  disclosure restrictions will result in fines ranging from $1,000 to
  $5,000 for individuals and from $2,000 to $10,000 for
  companies.

In the context of occupational health and safety

• Introduction of a definition of “sexual
  violence”: Section 1 of the AOHS defines
  violence of a sexual nature as “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”.

With regards to employment standards

• Minimum content that must be included in the policy
  for preventing and manage situations of psychological
  harassment: In a manner similar to what prevails in
  most other provinces, the policy for preventing and manage
  situations of psychological harassment that the employer must adopt
  ought from now on to contain multiple elements, including the
  following:
  

  • The specific information and training programs on psychological
    harassment prevention that are offered to employees;

  
  

  • The procedures for making complaints or reports to the employer
    or providing information or documents to the employer as well as
    the information on the follow-up that must be provided by the
    employer;

  
  

  • The measures to protect the persons concerned by a situation of
    psychological harassment and the persons who have cooperated in the
    processing of a complaint or report regarding such situation;

  
  

  • The process for managing a situation of psychological
    harassment, including the process that applies to the holding of an
    inquiry by the employer;

  
  

  • The measures to ensure the confidentiality of complaints,
    reports, information or documents received and to ensure a
    preservation period of at least two (2) years for the documents
    made or obtained in the course of managing a situation of
    psychological harassment.




• End of amnesty-type clauses for incidents involving
  physically or psychologically violent behaviour:
  Individual employment contracts, collective agreements, decrees or
  other agreements on working conditions can no longer prevent an
  employer from taking into account a disciplinary measure previously
  undertaken against an employee for physical or psychological
  violence, including sexual violence, when imposing a new
  disciplinary measure concerning a new case of misconduct relating
  to this type of violence.




• Punitive damages: The Tribunal
  Administratif du travail can now order an employer to pay
  punitive damages to an employee who has been the victim of
  psychological harassment, even though the employee is suffering
  from an employment injury resulting from that harassment.




• Regulatory offences relating to psychological
  harassment: The has been granted regulatory power to
  determine, by regulation, measures aimed at preventing or putting
  an end to a situation of sexual violence, thus reinforcing its role
  in protecting workers against such situations.

Conclusion and transitional provisions

It is important to note that a significant portion of these
changes came into force on the date Bill 42 was assented to, i.e.
March 27, 2024.

That being said, the main amendments affecting the
AIAOD and those relating to the minimum mandatory content
of the policy for preventing psychological harassment and dealing
with situations of harassment will only come into force as of
September 27, 2024.

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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.