Olivier Lamoureux
Partner
Article
9
On March 27, 2024, Québec passed Bill 42, An Act to prevent and fight psychological harassment and sexual violence in the workplace (the "Bill").[1]
One of the purposes of the Bill is to strengthen preventive measures and remedies for workplace psychological harassment and sexual violence. The Bill amends several Québec work laws, from the Act respecting labour standards (the "ALS")[2] to the Act respecting occupational health and safety ("OHSA")[3], and the Act respecting industrial accidents and occupational diseases (the "AIAOD").[4]
Some of the Bill's provisions came into force as early as March 27, 2024, while others will gradually take effect between now and October 1, 2025. The purpose of this article is to provide employers with an overview of these changes.
One of the major changes introduced by the Bill is the obligation for employers to include a series of new elements in their policy statements on psychological harassment prevention. Until now, the content of such statements was left to the discretion of each employer, the main obligation being to create such a policy and to share it.
In this regard, the Bill amends the ALS and employers have until September 27, 2024 to amend their harassment policy to include the following mandatory terms:
This new harassment policy must also be included in the prevention program or action plan of the establishment concerned, as of October 1, 2025.
Under the Bill, employers will no longer be allowed to retaliate against employees who report a situation of harassment they have witnessed or who cooperate in the processing of a complaint[5].
The Bill also stipulates that the cost of benefits due by reason of employment injuries resulting from sexual violence will be allocated automatically to all employers, thus derogating from the general rule established by the AIAOD[6].
The Bill also introduced a definition of "sexual violence" to the OHSA, which reads as follows:
"[A]ny 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."
We note from the outset that this new definition will considerably broaden employers' duties with regard to the protection of workers' health and safety under the OHSA.
The Bill establishes stronger protection for employees who are victims of sexual violence in the workplace, notably through new legal presumptions.
A worker's injury or disease is presumed to be work-related when it results from sexual violence suffered by the worker and committed by the worker's employer, any of the employer's executives in the case of a legal person or any worker whose services are used by the employer[7].
A worker's disease arising within three months after the worker suffers sexual violence at the workplace is presumed to be an employment injury[8].
The Bill will also modify the terms of access to an employee's medical records, if ever an employer contests an employment injury claim. As a result, once a health-care professional discloses medical information about an employee, he or she will only be able to provide the employer with the information required to summarize the file for the purposes of the contestation.[9] This will restrict the employer's access to an employee's complete medical record.
Health professionals who fail to comply with this obligation, as well as employers who seek to gain improper access to an employee's medical record in contravention of this new provision, will be liable to fines of up to $10,000 in the case of a legal person.[10]
Finally, the time limit for filing a claim for employment injury resulting from sexual violence will be extended from six months to two years.[11]
The Act to prevent and fight psychological harassment and sexual violence in the workplace demonstrates the legislator's determination to make employers and other stakeholders aware of the dangers these events can represent for the health and safety of Quebec workers.
In this sense, all employers doing business in Quebec will have to be extra vigilant in order to comply with the Bill's new provisions, and adapt not only their complaint processing accordingly, but also how they manage medical and disciplinary records including elements of psychological harassment and sexual violence.
If you have any questions about how amendments to the Bill can impact your organization, including how to draft a proper workplace harassment prevention policy, please contact Gowling WLG's Labour, Employment and Equalities group.
[1] CQLR, c. N-1.1.
[2] CQLR, c. N-1.1.
[3] CQLR c. S-2.1.
[4] CQLR c. A-3.001
[5] Supra, note 1, s. 33.
[6] Supra, note 1, s. 12.
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