On November 18, 2020, we published a summary of Bill 59 or An Act to modernize the occupational health and safety regime (Bill). The Bill provides for sweeping amendments to the regime that currently exists under the Act respecting industrial accidents and occupational diseases (AIAOD) and the Act respecting occupational health and safety (AOHS). At the time, we pointed out that the Bill unfortunately provides for significant setbacks for employers’ management and financing rights.
In March 2021, during parliamentary proceedings, the Minister of Labour introduced a series of proposed amendments to the Bill. Key amendments for employers are summarized below.
One of the proposed amendments rescinds the amendment provided in section 329 of the AIAOD, which was highly criticized by employers and management-side labour lawyers. Section 329 of the AIAOD allows costs to be shared among Quebec employers where a worker was already handicapped when the employment injury appeared. The Bill imposed a very stringent criterion on the type of handicap and provided that the section would only apply if the worker presented, prior to the injury, “a deficiency causing a significant and persistent disability and […] if he is liable to encounter barriers in performing everyday activities.” Given the degree of disability required under the Bill, the scope of section 329 could only apply to very few workers in Quebec. It is therefore reassuring that the Minister of Labour is proposing to withdraw the amendment initially provided in the Bill.
As summarized in our earlier publication, the Bill enacts the Regulation respecting occupational diseases, which sets out a list of occupational diseases. This regulation provides presumptions for certain types of occupational diseases, which eases the burden of proof for workers seeking compensation for such disorders. Among the amendments, the minister is proposing to add Parkinson’s disease, triggered by exposure to pesticides, to the list of occupational diseases.
The minister is also proposing an amendment to musculoskeletal occupational diseases arising from repeated movements (bursitis, tendinitis, tenosynovitis). Although the Bill presented a new definition for this type of occupational disease, the minister is proposing to go back to the standard and current definition provided in the AIAOD.
The Bill provides that when a worker is unable to perform the work performed prior to the employment injury, or equivalent employment, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) determines whether suitable employment is available with the employer. The CNESST carries out this exercise by assessing, in particular, whether rehabilitation measures are required to enable the worker to engage in such employment. In the amendments to the Bill, the Minister of Labour proposes that both the employer and the employee must cooperate in determining what constitutes suitable employment.
As for the AOHS, as summarized in our earlier publication, the purpose of the Bill provides for the application of prevention and worker participation mechanisms to all sectors of activities according to the size of each establishment and the risk level of the activities carried on there.
Concerning the proposed amendments, the Minister of Labour is withdrawing from the Bill the notion of risk, to maintain only the criterion of the company size (number of workers).
Furthermore, the minister is proposing that when no prevention program is to be developed or implemented for an establishment, the employer must nonetheless implement an action plan specific to that establishment. Such an action plan involves the identification of risks to the health and safety of workers, the measures to eliminate or control the risks, the monitoring and maintenance mechanisms to ensure that the identified risks are eliminated or controlled, the identification of personal protective measures and equipment as well to the training and information provided to workers with respect to occupational health and safety.
Also included among the proposed amendments is a provision that the AOHS applies to teleworking, “subject to any incompatible provision” of the AOHS. Note that with the exception of rules concerning a visit by inspectors from the CNESST to a residential home, the amendments do not specify the rules applicable to teleworking. Therefore, issues such as teleworking obligations of employers and workers will likely have to be decided by our Quebec courts. We invite you to contact us for more detailed information on the topic.
Finally, we remind you that the Bill amends section 51 of the AOHS (the employer’s general obligations) to provide for measures that ensure the protection of a worker exposed to a situation of spousal or family violence in the workplace. The minister has now added the situation of sexual violence in the proposed amendments. As mentioned previously, we hope that the parliamentary proceedings underway (the transcripts of which are to come) will clarify the specific situations to be covered by this addition to the AOHS and circumscribe the measures that will allow employers to satisfy this new obligation.
As the Bill is likely to change again, we will continue to keep you informed of any new developments.