'It really is trying to update the legislation to make it more current, with a greater focus on the prevention of workplace accidents and injuries'
“It is a pretty big change for employers… this is really the first major update or overhaul of the health and safety legislation in Quebec in several decades.”
So says Shari Munk-Manel, partner at McMillan in Montreal, in talking about Quebec’s Act to modernize the occupational health and safety system, which is gradually taking effect over the next couple of years.
“It really is trying to update the legislation to make it more current, with a much greater focus on the prevention of workplace accidents and injuries,” she says.
There has not been a revamp of this kind in several decades, even though the amount and variation of claims, including mental and physical health and other toxic agents, have increased, according to Patrick Essiminy, a partner at Stikeman in Montreal.
“Clearly, the law was not really following the pace of recent developments, both on the medical front and on the legal front.”
Plus, there is a huge backlog, both in the amount of cases that need to be heard, but also with the medical evaluation process because of COVID, he says.
“A lot of the measures that you're seeing in [the act] are trying to create more efficiency in terms of the claims process, in terms of favouring return to work when possible, so it is an important initiative.”
Having been approved in October 2021, the amendments are being rolled out over the next couple of years. Changes that took effect in the past year concerned placement agencies, scientific committees, a certification program, benefit guidelines for late claims, occupational diseases, the analysis of cancer claims, telework and violence at work.
More recently, on Oct. 6, 2022, several more changes took effect that will impact employers when it comes to medical evaluations, temporary assignments, the accommodation process, the return to work and suitable employment.
BEM changes
The powers of the bureau d'évaluation médicale (BEM) are changing under the new rules. The CNESST (Commission des normes de l'équité de la santé et de la sécurité du travail) must forward the contestation and the worker's complete medical record “without delay” to the BEM so that it can be assessed. The CNESST must also notify the Minister of ministère du Travail, de l’Emploi et de la Solidarité sociale of the subject matter of the contestation and the names of the health professionals concerned to ensure that the medical record is transmitted to the BEM at the same time as the contestation, which was not the case before.
When the BEM expresses an opinion on the date of consolidation, they must also do so on the existence of functional limitations and on the percentage of permanent physical or mental impairment of the worker. And if the BEM member thinks the injury no longer requires care or treatment, they may rule on the date of consolidation.
“Now, the CNESST has to forward both the contestation and the worker’s medical record to the BEM at the same time. That wasn't the case before, it happened more in stages,” says Munk-Manel.
By having the BEM expand on what they’re going to be making determinations upon, “it's going to potentially result in the employee also not having to go back to their treating doctor for as much information, and that could also potentially speed up the process,” she says.
The change is intended to give powers to the medical evaluator to act as an arbitrator and make things more efficient, says Essiminy.
“That's going to potentially expedite files processed. So that is not a cost to the employer. And, in fact, it may favour the employer that is seeking to expedite the medical treatment of a file.”
Temporary assignments
As part of Bill 59, the employer of a worker who has suffered an employment injury must now use the CNESST form for a temporary assignment of work.
An assignment is authorized if the treating health professional believes that the worker is reasonably able to perform the work and it does not pose a danger to their health, safety and physical and mental well-being due to their injury, along with being beneficial to their rehabilitation.
The treating professional will indicate on the form the worker's temporary physical or mental functional limitations, and the employer must send the form to the CNESST, even if the temporary assignment is not authorized by the health professional.
The idea is really to standardize the form, says Munk-Manel.
“When the treating physician receives the form, it's a bit more standard in terms of ensuring that they receive the same information from all employers. And once they receive the form, they have to conclude: Is the worker reasonably fit to perform the work? [Will] the work, despite the worker’s injury… not pose a danger to the employee's health, safety and physical wellbeing? And is the work going to be beneficial to the worker’s rehabilitation?” she says.
“I think the purpose of this really is that it will allow for a faster return to work, and it will just ensure that temporary assignments are handled in a more efficient way.”
Employers can also propose a temporary assignment, along with the expected duration of the assignment, says Munk-Manel.
“It could be proposing that the employee will perform the same job, but with a less rigorous schedule or reduced workload, a slower pace or removing certain tasks.”
In the past, many employers did not have a systemic approach to temporary work assignments, says Essiminy.
“And if the request is coming in a way that is unclear and specific, using a form that was done in-house using information that is not necessarily relevant, it for sure makes it harder for a treating physician to approve the temporary work assignment.”
By having one standard form, over time, treating physician will become accustomed to the forms, he says, “and it may have a positive effect, in that treating physicians will be more apt to look at that form and approve the work.”
Plus, with new guidelines, it’s hoped that treating physicians will cooperate better in getting their patients back to work, instead of not working and receiving benefits, says Essiminy.
“It is a very important objective for employers, because not only does it create cost savings for the employer, it makes the employees who are injured, who are able to do light duties, perform work that is useful for employers — it may be different from their usual work, but it is still work that is useful — and… it favours a gradual return to work, which is better than someone who stays out of work for a long time because that is not conducive to a good return to work.”
Duty to accommodate
Quebec is also enhancing measures regarding the right to return to work to better facilitate the reintegration of a worker to their original job, an equivalent job or a suitable job.
For example, if no rehabilitation measure enables the worker to return to their job or an equivalent job, the CNESST will determine — in collaboration with the worker and employer — whether suitable employment is available and what’s an appropriate vocational rehabilitation program.
The CNESST also assesses, in collaboration with the employer and the worker, the need for reasonable accommodation to reintegrate the worker into the employer's workplace.
An employer that refuses to cooperate may have to pay a monetary administrative penalty equivalent to the income replacement benefit to which the worker would have been entitled during the period the employer was in default.
The changes involve greater involvement or collaboration between government, workers and employers, says Munk-Manel.
“Now, the CNESST will be evaluating jointly with the employer and the employee the need for reasonable accommodation to reinstate the worker in terms of suitable employment; previously, the CNESST decided whether suitable employment was available really based on just information that they gathered from the parties, but it was less of a collaborative process.”
Plus, employees are expected to participate more in the search for suitable employment, which is a benefit for employers, she says.
“If they're receiving an income replacement indemnity, they're now obligated to participate in the job search support and accompanying services that are offered by the CNESST; previously, this was kind of optional and now they're obligated to because if they fail or refuse to participate, they may see their income replacement indemnity being reduced or suspended — which is encouraging, I think, for employers, because it hopefully will speed up the process in which an employee will find another position, which will then reduce, obviously, the amount of the income replacement indemnity they're receiving.”
But the changes may put more pressure on employers, because the CNESST now has more powers, says Essiminy.
“In the past, even though the spirit of the law was to try to bring the employees back to their job or to a suitable job, it was not within a very strict framework. And when employers did not really cooperate, it did not create any consequences — unless there was a union in place that pushed it through the grievance process.”
Historically, the government has not been very aggressive in pushing employers to reinstate injured employees if that was not easily done, he says.
“The duty to accommodate may be the piece where employers will have to spend a bit more time and where there may be some cost created, if the duty to accommodate does require certain adjustments to positions, to workstations, to certain tools.
“I don't think employers can assume now that they can just lightly discount the idea that they have to participate in a potential accommodation for an employee that has ultimately been declared to be healed, but with permanent limitations,” says Essiminy.
