How is Quebec looking to change its labour laws?

Quebec’s proposed Act to prevent and fight psychological harassment and sexual violence in the workplace is looking to prevent and fight psychological harassment and sexual violence through “the protection of workers in their work environment and the protection of the exercise of workers’ recourses to ensure that protection.”

And some of the changes are big ones, “which, when they are added together, they can be of capital interest to employers,” says Olivier Lefebvre, lawyer at Cain Lamarre in Montreal.

“Several of the proposed amendments could prove challenging for employers.”

Quebec’s legislation has proposed modifications to several pieces of employment and labour legislation, including the Act respecting industrial accidents and occupational diseases (ARIAOD), the Labour Code, the Act respecting labour standards (ARLS) and the Act respecting occupational health and safety (AROHS).

Prescribing minimum content for harassment policies

The ARLS is amended to specify that an employer’s obligations to prevent psychological harassment apply to harassment from “any person” in the work environment, along with prescribing the minimum content of the policy to prevent and manage situations of psychological harassment.

For example, the policy must set out:

• methods and techniques used to “identify, control and eliminate” the risks of psychological harassment, including behaviour such as verbal comments, actions or gestures of a sexual nature
• specific information and training programs on psychological harassment prevention
• recommendations on behaviour to adopt when participating in work-related social activities
• 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 a situation
• measures to ensure the confidentiality of complaints, reports, information or documents received and to ensure a preservation period of at least two years for the documents.

Identifying, controlling and eliminating the risk of psychological harassment “is certainly the most challenging element,” says Sarah-Émilie Dubois, a senior associate at Dentons in Montreal, as the employer cannot be everywhere to see and hear everything.

But the new protection against reprisals will hopefully see more employees willing to participate in the denunciations process, she says.

‘Any person’ included in harassment terms

 Of course, a risk of zero is never possible, says Lefebvre, “but the minimal requirements for the policy pretty much set the context in which employers will have to work in the future.”

Organizations will have a lot of obligations, he says, and the legislation is pretty detailed compared to what was outlined before.

“In a sense, it's sort of comforting to know exactly what you have to establish for your policy. But it might be an additional administrative burden for some employers who are not actually ticking all the boxes of the minimum requirements.”

As for including “any person” in the new legislation, that’s more of a clarification, says Lefebvre.

“The section in its current state doesn’t specify the people from which the harassment could arise. It is widely understood that the employer’s obligation to protect their employees applies regardless of the fact the harassment is committed by an employee or a third party. However, some employers brought that issue before the courts stating that their obligations couldn’t apply if the harasser wasn’t one of their employees or representatives. For clarity, the modification addresses that issue.”

Defining, assessing sexual violence

As part of Bill 42, the Act respecting occupational health and safety would be amended to define “sexual violence” and give the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) the regulatory power to determine measures to prevent or put a stop to sexual violence.

Sexual violence would be defined 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.”

The new presumptions would make it more difficult for employers to defend themselves in that context, says Lefebvre.

“[Previously] there was no definition for sexual violence in the law. But the bill adds one and the reason why it might be significant for employers is that the definition for psychological harassment, specifically, states that... a single event can't constitute psychological harassment under certain conditions related to the seriousness of the situation and other criteria, but when it comes to sexual violence, there's no criteria to be met.

“So, a single situation, a single event can always constitute sexual violence… so it's an added liability for employers in that regard.”

Employment injuries and sexual violence

In addition, the Act respecting industrial accidents and occupational diseases would be amended so that a claim for an employment injury resulting from sexual violence would extend to two years — instead of six months — with the CNESST.

“The purpose is quite obvious — it's to preserve access to justice for victims of sexual violence in the workplace,” says Lefebvre.

“But the consequences for employers are that as time passes, documents can get lost, employees may change jobs, etcetera, so all kinds of situations that could make it a challenge to gather the proof necessary for employers to exercise their rights under the act.”

That change could make it more difficult for the employer to compile evidence to fight back against the claim, says Dubois.

“But it makes sense why the time limit is extending because, according to the latest research, it seems that the main reason why those kinds of claims are denied is the failure to meet the… [deadline] for filing a claim. And the [ALRS] is already two years.”

Another change: Previously, a judge could order the payment of punitive damages, unless the employee was already compensated under the ARIAOD, which would mean double compensation, she says.

“Now, it will be possible for the judge to order such payments of presumptive damages even if the employee is already compensated.”

Sexual violence ‘in the course of work’

Under the proposed legislation, a worker’s injury or disease is presumed to have “arisen out of or in the course eof the worker’s work when it results from sexual violence suffered by the worker and committed by the worker’s employer, any of the employer’s executive officers in the case of a legal person or any worker whose services are used by the employer for the purposes of the same establishment, unless the violence arises in a strictly private context.”

The sexual violence will be presumed to have happened in the course of doing their job, so the employee won't have to demonstrate that element, says Dubois, “but they will still have to demonstrate that they suffered the occurrence of sexual violence, and that the sexual violence caused an injury.”

If someone develops a psychological disorder that arises from an event related to sexual violence, that would constitute a work-related disease or injury — but the two-year deadline could make things tricky for employers, says Lefebvre.

“For example, after one-and-a-half years, if someone submits a claim stating that they have a disease related to a sexual violence context in the workplace, documents that the employer might have had at the time of the event may be difficult to find; people who were employees and potential witness at the time might not be there anymore.

“And so the definition being that broad just adds up to the uncertainty [for] employers.”

Handling of medical records

Also of note: Bill 42 also would change the rules relating to the right of access to the worker’s medical record in the possession of the CNESST, specifying that the information disclosed to the employer by a medical professional must be strictly necessary so the employer can exercise their rights.

Currently, the law doesn't allow employers to have direct access to a worker’s medical file, but it also “doesn't expressly prohibit such an access and it doesn't have any specific penalties for an employer that would access it. So … what happens in practice is that sometimes employers might end up with the medical file and be able to just read through it, so the bill has a purpose to prevent that,” says Lefebvre.

“But for an employer's defense against a claim, it could prove to be a major hurdle.”

There will be also penalties specifically related to accessing the medical file of a worker, both for an employer who ends up with the information in their hands and for the designated physicians who might transmit such information to an employer, he says.

Quebec recently passed a law that states that federal employers or those who have staff located in Quebec (or in a region with significant French population) must commit to a process known as Francization by offering French language communication, computer systems and supervision to those employees who request it.

Waiving confidentiality after harassment

The new legislation also proposes that in the settlement of a complaint concerning psychological harassment, the duty of confidentiality may be waived.

“The parties may… agree to relieve each other from the duty of confidentiality, in which case they must specify that they do so in their settlement agreement and indicate in the agreement when it takes effect,” states Bill 42.

It’s not a significant change, says Lefebvre, as draft settlement agreements usually see the parties “systematically” including a confidentiality clause regarding the settlement process — which they could theoretically renounce.

“The modification only makes the settlement process confidential by default. Each party can then relieve the other of its confidentiality obligation. It could be the case when a worker negotiates some form of public apology from the employer which makes such relief necessary.”

Non-disclosure agreements used in cases of workplace harassment in Ontario could soon see their final days.

Disciplinary considerations in Bill 42

One last consideration: Quebec’s Bill 42 also proposes an amendment that states no individual contract of employment or collective agreement can “prevent an employer from taking into account a disciplinary measure previously imposed on an employee for misconduct relating to physical or psychological violence committed by the employee, including sexual  violence, when imposing a disciplinary measure concerning a new case of misconduct relating to one of those forms of violence.”

Basically, it will be prohibited to have an “amnesty clause” in an agreement which allowed, after several months or years, for disciplinary sanctions to go away if they were in relation to sexual violence, and the person found themselves again in that type of situation, says Lefebvre.

“The past situation cannot be erased from the employee’s file, so it'll always stay there for that specific type of prohibited conduct.”

The objective is to ensure that the behaviour won't happen again, says Dubois.

“When this is not the first incident, normally an employer will want to impose a more severe disciplinary measure — so they will be able to do that, no matter that the collective agreement stipulates an amnesty clause.”