Employers’ obligation to protect psychological well-being of workers expanded by Quebec bill

Bill 42 follows up on efforts by the provincial government in 2021 to tackle harassment and violence in the workplace when it introduced the concept of violence in the Quebec labour system by amending the occupational health and safety regime. But this legislative proposal is more far-reaching as it amends no less than four provincial labour laws — the Act respecting industrial accidents and occupational diseases (AIAOD), the Labour Code, the Act respecting labour standards (ALS) and the Act respecting occupational health and safety (AOHS).

Psychological harassment and sexual violence in the workplace is a scourge, as one legal observer put it. In Quebec in 2020, almost one in two (49 per cent) observed or experienced inappropriate or discriminatory sexual behaviour in the workplace in the 12 months preceding the survey on sexual misconduct in the workplace conducted by Statistics Canada. In 2022, according to statistics from Quebec’s occupational and health organization (Commission des normes, de l’équité, de la santé et de la sécurité du travail or CNESST), 4,909 requests for recourse concerning psychological or sexual harassment were filed under the Act respecting labour standards, up from 4,398 in 2021.

“Overall, it’s a great initiative, a good follow-up step in efforts that have been made in recent years,” said Sarah-Émilie Dubois, a Montreal employment and labour lawyer with Dentons. “However, there is still work to be done in the bill, there’s no doubt about that. Above all, certain provisions can be fine-tuned to allow employers to exercise their rights.”

Pablo Guzman, a litigator who practices corporate and employment law with DLA Piper in Montreal, asserts that Bill 42 represents the codification of best practices already in implemented by major employers. “For more established, larger enterprises, this will not necessarily come as a shock or a surprise,” said Guzman. “For smaller businesses, it creates the need to think about things that they don’t ordinarily think about, and the expense associated with that.”

That’s a position that Finn Makela, a labour law professor at the Université de Sherbrooke, largely concurs with. “If you have best practices, so much the better,” remarked Makela. “You probably don’t need much legislative change. But there are a couple of things that are outside of the purview of even those workplaces that engage in best practices. And that’s because when there’s a situation where there’s litigation, sometimes even in workplaces where there are best practices, there’s still a disagreement about how the rules ought to apply in a particular context, or disagreements about facts on the ground.”

The bill is a step in the right direction but it does not go far enough, said Guillaume Lavoie, a legal adviser with the Fédération des travailleurs et des travailleuses du Québec (FTQ), the largest labour federation in Quebec in terms of its membership. The union is pleased that the bill creates new obligations for employers that compel them to have a “minimum” amount of content that must be outlined in psychological harassment policies. Under Bill 42, policies must set out “methods and techniques” to identify, control and eliminate risks of psychological harassment, provide information and training programs to employees, issue recommendations that spell out appropriate behaviour during work-related social activities, and establish procedures for complaints and implement measures to protect victims of harassment, among other requirements.

But it remains, pointed out Lavoie, that the proposed law has not made it simpler to file a complaint. It can still be a trying experience for victims to have to navigate an extremely complex legal system, not least because there are at least four tribunals that have overlapping or exclusive jurisdiction over different aspects of these kinds of complaints, he added. “The legal framework for protection against psychological harassment, and _a fortiori_ the legal framework for protection against sexual violence, is extremely complex, since the obligations in this area are set out in a wide variety of laws,” said Lavoie.

Bill 42’s underpinning stems from a 300-page report, with 82 recommendations, by an expert committee of three professors who were given a mandate in February 2022 by the Quebec government to assess the “coherence and effectiveness” of remedies under employment laws available to workplace victims of sexual assault or sexual harassment in the workplace.

“Bill 42 contains a number of measures that could make a major contribution to the prevention of sexual violence in the workplace, which is excellent news for the equality rights of women in the workplace and other groups at risk,” said the expert committee in a brief issued following the introduction of Bill 42. “In some respects, Bill 42 does not fully address the issues documented in the report published in May 2023. In some cases, the proposed amendment risks adding unnecessary complexity to the legal framework. In other cases, Committee members believe that there is a missed opportunity to make Quebec’s labour laws more coherent and effective.”

The proposed legislation introduces a comprehensive and extensive definition of “sexual violence” under the occupational health and safety act. It “means 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.” That is a “very broad” definition that is “very open” to interpretation that will likely be the source of debate before tribunals, particularly since Bill 42 adds new and “legitimate” presumptions, noted Dubois.

Bill 42 adds two presumptions to help ease the burden of proof for victims of sexual violence in the workplace. An employee who experienced sexual violence would benefit from a presumption that they suffered an employment injury or occupational disease if it occurred during the course of work and was committed by their employer, an executive or a colleague, unless it occurs in a “strictly private context,” a very controversial add-on. A worker’s disease arising within three months after the worker suffered sexual violence at the workplace is also presumed to be an employment injury. In both cases, the onus falls on the employer to reverse the legal presumption. “This will place a huge burden on employers,” said Dubois. “That’s why it’s important to have a relatively precise definition.”

EMPLOYERS CONCERNED

Employers are also concerned new rules dealing with their right to access medical records. At present, an employer’s right to access a worker’s medical record held by CNESST dealing with an employment injury is reserved exclusively for the health professional designated by the employer. Under Bill 42, that right is tightened. Under section 7 of the bill, a designated health professional may disclose only information “required” to provide the employer with a summary of the worker’s medical file. The interpretation of what constitutes “required information” is left to the discretion of the health professional, points out the Barreau du Québec in a brief. Illegal disclosure of information by a health professional, as well as obtaining or attempting to obtain a medical record by an employer, will constitute offences punishable by a fine of $1,000 to $5,000 in the case of a natural person, and $2,000 to $10,000 in the case of a legal person.

“It’s a general principle of law that once a litigant asserts a medical condition, you have as a defendant the right to test and verify information regarding medical condition,” said Guzman. “So what will be the high watermark of what information can be obtained, for instance, by the employer will have to be tested.”

The Quebec Bar goes further and maintains s. 7 of the bill could compromise the employer’s right to a full and complete defence, one of the pillars of procedural fairness.

But Makela does not find the bar’s stance persuasive. Rather he maintains that a “more convincing position” from the bar would have been to assert that doctors cannot make legal determinations over what is relevant to a legal proceeding. “It’s lawyers,” he added. FTQ counsel Lavoie noted that section 7 of the bill does not prohibit employers access to medical files but circumscribes its access through a third party who will “distinguish” between what is relevant to the case and what is not. “Having pleaded cases for 12 years, this is a tactic used by employers to get the victim to come clean or settle the case,” said Lavoie. “They threaten to expose their medical past in a court of law. That’s what the bill aims to correct. It’s a positive step.”

AMNESTY CLAUSES

Besides establishing new measures to protect the confidentiality of employees’ medical records in the event that an employer contests it, Bill 42 creates a new provision that limits the application of amnesty clauses in cases dealing with workplace violence. The bill expressly allows employers to take into account previous disciplinary measures imposed on an employee for physical or psychological violence, even in the presence of an amnesty clause, when imposing new sanctions. In other words, amnesty clauses in prior agreements or decrees are inapplicable. That is problematic, according to Lavoie. Sexual assault should lead to dismissal, adds Lavoie categorically. But he maintains that while amnesty clauses are” inappropriate” in some cases, employers should only take into account disciplinary measures that were laid against a person in the two preceding years.

Limiting the application of amnesty clauses can have unintended repercussions, pointed out Makela. It could lead to an increase of cases going to court and longer arbitration times because workers will have a much greater interest in contesting disciplinary measures if they are permanent. “It’s obviously a kind of hot potato,” said Makela. “It’s pretty problematic to say that somebody who’s committed a crime has a right to be rehabilitated, but in the workplace, you’re branded for life. If I know that I am going to have this on my record for the rest of my life, I have every incentive to litigate it. And what happens when you litigate it? Well, then you require the victim’s testimony.”

Under Bill 42, arbitrators who hear grievances dealing with psychological harassment must undergo mandatory training. But arbitrators are not waiting for the passage of the bill. They have already begun taking steps.

As soon as the blue-ribbon panel published its report, arbitrators established a practical guide for grievances that included elements dealing with harassment and sexual violence, said Dominic Garneau, president of the Quebec Conference of Arbitrators.

Moreover, at present 47 arbitrators have taken a three-hour course given by a Quebec Ministry of Justice consultant, a figure that is expected to increase in the near future. “It’s really about stereotypes because, as humans, as decision-makers, we carry some of the same stereotypes as others, as society in general,” said Garneau. “So the training focused on this and made us a little more aware of the difficulties faced by victims when testifying about highly intimate things.”

Makela, as do other legal observers, believes that Bill 42 is a step in the right direction as it makes it plain that workplace harassment and sexual violence is “not acceptable” in a Quebec workplace. “Laws have legal effects but they also have symbolic effects, and those effects are important,” said Makela. “Just naming the problem and saying this is something we want to deal with, in and of itself, is a good thing.”