Deadline for new harassment rules in Quebec fast approaching

With the passage of Bill 42 back in March, employers in Quebec had new obligations to meet when it came to preventing and fighting psychological harassment and sexual violence in the workplace.

Several changes quickly came into force — including a new definition of sexual violence, broader obligations around psychological harassment by “any person,” and protections against employee reprisals — but now employers should be prepared for new requirements taking effect Sept. 27, 2024.

These include the elements to be included in a compliant policy, enhanced confidentiality, presumptions of employment injury, and restricted access to workers’ medical records.

The requirements for policies represent a “major change,” says Olivier Lamoureux, partner at Gowling in Montreal.

“Right now, in Quebec, employers are required to have a harassment policy, but the contents of the policy are not detailed. I mean, they're pretty much free to have whatever they want to have in those policies. That is going to change substantially as of Sept. 27.”

For several years, employers have had obligations when it comes to preventing and intervening in situations of psychological harassment in Quebec, and having a policy in this respect, says Catherine Gagné, an associate at Blakes in Montreal.

But the new rules coming into force in September are more “precise and detailed.”

“There's going to be a minimum content that will be required to include, and you'll have to ensure that your policy meets those requirements or has this content,” she says.

“They have to be more detailed on what, exactly… steps they're taking to prevent the psychological harassment, and be more transparent with employees on how this is going to be achieved.”

‘Methods and techniques’ to eliminate risks of harassment

With Bill 42, the Quebec government sets out several requirements to be included in a policy around psychological harassment. For one, employers must set out “the methods and techniques used to identify, control and eliminate the risks of psychological harassment, including a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature.”

The idea is that employees should understand which types of behaviour are not acceptable in a workplace environment, and they should also understand that these types of behaviour will not be tolerated by their employer, says Gagné.

The methods and techniques will need to be tailored depending on the nature of the business and the workplace environment, she says.

“It will generally include ensuring that the policy is communicated to all employees and ensuring that the employees know where to find the policy — so whether it's posted in the work, like in the physical workplace or on the internet — ensuring also that the employees understand the policy, which can be done through employee training and an awareness program.”

Methods and techniques can also include promoting respect between individuals and providing training to the employer representative who will be in charge of addressing the workplace harassment complaints, to ensure that they are familiar with how they should handle those complaints, says Gagné.

“If it's warranted or appropriate, the employers can also consult their employees on situations specific to their workplace that could create conditions or situations that could lead to harassment.”

Also recommended are exit interviews with departing employees, she says, to learn about situations or conditions that could be problematic within a workplace and lead to situations of workplace psychological harassment.

When it comes to listing methods and techniques in the policy, anything works, as long as you have one identified in the policy, says Lamoureux.

“It could be workshop session to make sure that people are aware of the problems related to harassment and violence in the workplace,” he says, or one-on-one interviews to feel the pulse of the workers in a specific workplace.

“It could be really anything. I mean, the employers have a lot of leeway when identifying what kind of methods and techniques would work, and they don't have to have a specific number of methods and techniques as well — if they just have a policy that says one thing, and they say, ‘Well, this is our method to just make sure that we are aware of  harassment situations and that we are able to prevent it,’ that normally would be sufficient in the present context.”

Protecting people involved with complaints

The policy must also detail the procedures for making complaints or reports to the employer “or providing information or documents to the employer, the person designated to manage them, as well as the information on the follow-up that must be given by the employer” and the process for managing a situation of psychological harassment, including an employer holding an inquiry.

And employers should outline measures they are taking “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 a situation,” according to the legislation.

That can include keeping a complainant distant from a person identified as being a harasser, says Lamoureux.

“For instance, if they work on the same team, well maybe you remove one of the persons... that's definitely something that should be done on a very systematic basis,” he says.

“It doesn't need to be permanent, but at least during the investigation process, I think it would be good to ensure that those people do not necessarily see each other… to ease the tension and to make sure that they are working in a more peaceful work environment.”

Maintaining confidentiality with harassment

Finally, the policy must outline the steps taken by an employer to ensure the confidentiality of complaints, reports, information or documents received.

In most cases involving harassment, there are several parties involved so to maintain confidentiality, the employer representative who is conducting the investigation should remind the parties involved to keep the facts confidential, says Gagné.

“They should also keep confidential the existence of the investigation and the content of the interviews. The parties that are involved should be clearly advised not to discuss the investigation process or divulge its existence with anyone to preserve the integrity and confidentiality of the investigation process and the persons involved.”

Although it is not required by law, a good practice for the person conducting the investigation could be to ask all parties involved to sign a short confidentiality agreement, she says, “to confirm their undertaking to maintain the confidentiality of the complaint and investigation.”

At the end of the investigation, the findings should only be shared with a limited number of individuals with a need to know, says Gagné.

“And measures should be taken as well to ensure that the documentation pertaining to the complaint and the investigation is properly stored on the company systems or premises with restricted access.”

Breaches of confidentiality do happen, says Lamoureux, but it’s important for employers to show that they did all they could to prevent such violations.

“It's more about showing that you are willing to comply, and you go the extra mile just to make sure that there's no confidentiality breach.”

New rules around employment injuries

Aside from the new requirements around policies, Quebec’s legislation adds a legal presumption that when an employee has been involved in sexual violence and suffers an injury, the injury is presumed to be a workplace-related injury.

The time limit for filing a claim with the government for that type of injury has also been extended “significantly” to two years, says Lamoureux.

“Right now, they have six months to file a claim with the CNESST [Commission des normes, de l'équité, de la santé et de la sécurité du travail],” he says.

“And on top of that, they will benefit from new legal presumptions, and I think that's... probably going to be a game-changer for the admissibility of work-related injury claims to the CNESST… Right now, the employee, they don't really benefit from these kind of presumptions and they do have a steep hill to climb when they make a claim. Now, it's going to be much easier for them, so the burden will rely more on the employer to challenge the claim should they feel that this is not related to a work injury or doesn't qualify as a work injury.”

Changes to handling of medical notes

Further to that, Quebec has changed the rules relating to the right of access to a worker’s medical record, “with specific offences for contravening any of those rules.”

The new rules appear to be in line with recent changes to the Quebec legislation regarding the protection of personal information, says Gagné.

“The most recent changes... aim to restrict the access to the employee’s medical record and physical rehabilitation record in the possession of the CNESST in the context of a workplace injury, and to limit the information that can be shared with the employer in this respect,” she says.

“Under the current rules, the health professional that was designated by the employer to do an assessment of the employee’s medical condition had the ability to provide the employer with a summary of the employee's medical records obtained; under the new rules, only the health professional will have access to the employee’s medical record and [they] will no longer be authorized to provide that summary of the medical record, [so] only the minimum information that is required for the employer to understand the medical opinion being provided.”

It’s an “interesting change,” says Lamoureux.

“Basically, the legislation will restrict the employer's access to an employee's complete medical record in the context of a challenge related to an occupational disease or an industrial accident related to harassment or violence in the workplace.”

Previously, an employer could ask for complete access to the medical record in order to prepare their 'defense' before the CNESST, he says, and now they will not be able to do so.

“That's going to be a major change. I'm not saying that employers will have a harder time preparing their fights for a claim before the CNESST but they will, for sure, have no access to anything that's not related to the client itself, which was different before.”