Québec Bill 42: New Obligations Regarding Workplace Psychological Harassment and Sexual Violence
October 2, 2024
| By
Adele Zhang
Legislation
Bottom Line
Bill 42: An Act to Prevent and Fight Psychological Harassment and Sexual Violence in the Workplace (“Bill 42”) was adopted by the National Assembly of Québec on March 21, 2024. This legislation modified Québec labour laws with the goal of improving protections for victims of psychological harassment and sexual violence in the workplace. Key changes came into effect on Friday, September 27, 2024.
Bill 42 amends key Québec employment and labour-related legislations including the Act respecting industrial accidents and occupational diseases (“ARIAOD”), the Act respecting labour standards (“ARLS”), the Act respecting occupational health and safety (“AROHS”), and the Labour Code.
The first set of changes came into effect on March 27, 2024. Most recently, a second wave of changes came into effect on September 27, 2024. The last changes under Bill 42 are set to come into effect on October 1, 2025.
I. Changes in Effect as of September 27, 2024
The following changes came into effect on Friday, September 27, 2024.
ARIAOD Key Amendments: Presumptions, Access to Medical Records, and Extended Limitation Periods
Bill 42 amends section 28 of the ARIAOD to add two new legal presumptions regarding workplace injuries arising out of sexual violence:
- First, a worker’s injury or disease is presumed to have arisen out of or in the course of the worker’s work when it arises from sexual violence suffered by the worker in the workplace;
- Second, a worker’s disease arising within three months after the worker suffered sexual violence at the workplace is presumed to be an employment injury.
These presumptions shift the burden of proof from the worker to the employer, which will change how cases of workplace sexual violence injuries are adjudicated.
Amendments to section 38 of the ARIAOD will also significantly limit employers’ access to workers’ medical records held by the Commission des normes, de l'équité, de la santé et de la sécurité au travail (CNESST). In Québec, the CNESST administers workers' compensation benefits. As of September 27, 2024, employers will not have direct access to health records held by the CNESST. Instead, an employer may designate a health professional, who can then provide a summary of the record and as well as their opinion. Access to the record held by CNESST is free of charge, however, the information contained in the summary produced by the health professional must be only the information necessary to allow the employer to exercise its rights under the ARIAOD.
These amendments also introduce new offences under the ARIAOD for any employer or designated health professional who contravenes these rules. They may now be liable for a fine ranging from $1,000 to $5,000 for individuals and $2,000 to $10,000 for entities. These rules may discourage health professionals from providing their opinions, which in turn could restrict an employer’s ability to provide a full response and defense in employment injury cases.
The third key amendment to the ARIAOD extends the limitation period from six months to two years for claims arising out of sexual violence in the workplace. This means workers with claims of an employment injury or occupational disease resulting from workplace sexual violence have two years from the date of the injury or when the worker is made aware of their disease to file their claim. These amendments provide workers with significantly more time to file claims arising from the sexual violence in the workplace under the ARIAOD.
ARLS Key Amendments
Bill 42 also amends the ARLS to improve protections around psychological harassment in the workplace. Effective September 27, 2024, the ARLS will require employers to develop and implement policies that set out:
- the methods and techniques to identify, control, and eliminate risks of psychological harassment;
- training for employees and managers on psychological harassment prevention;
- recommendations on behaviours to adopt when participating in work-related social activities;
- procedures for making a complaint or report to the employer;
- protective measures for people concerned with psychological harassment or those who are involved in the complaint process;
- an intake and investigation process; and
- measures to protect the confidentiality of the complaint and information, including requiring employers to retain for at least two years the documents produced or obtained in the course of managing a situation of psychological harassment.
In addition to these parameters for developing a workplace policy, Bill 42 also requires all parties to a psychological harassment complaint to maintain the confidentiality of the resolution process, unless all parties agree, in writing, to waive this obligation.
II. Changes already in effect as of March 27, 2024
The amendments below came into force earlier this year.
AROHS Key Amendments
- A definition of sexual violence was added to the AROHS. “Sexual violence” is 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”.
- A new positive obligation to take measures to prevent or put a stop to workplace sexual violence.
ARLS Key Amendments
- Prohibiting the application of amnesty (or “sunset”) clauses under collective agreements or employment contracts relating to physical and psychological violence, including sexual violence. This means an employer imposing discipline in a case of workplace violence can take into account previous disciplinary history of a similar nature despite the existence of an amnesty clause.
- Protections against reprisal for employees who made a report of psychological harassment.
- Enabling the Administrative Labour Tribunal to order the employer to pay punitive damages to an employee who has been the victim of psychological harassment.
- Enabling mediators to end mediation if they consider, in the circumstances, that intervention is not useful or appropriate.
- Creating a positive obligation for employers to prevent the psychological harassment of workers from any person in the workplace including third-parties such as customers, contractors, and suppliers.
- Increased fines for offences under any provision concerning psychological harassment.
Labour Code Key Amendments
- Requiring mandatory training on sexual violence for arbitrators who accept referrals of grievances concerning psychological harassment.
III. Effective October 1, 2025 Changes: New Mandatory Workplace Policy
The following change to the ARIAOD will come into force on October 1, 2025:
- New requirement that Québec employers must develop a workplace policy to manage and prevent psychological harassment.
Takeaways
Bill 42 aims to create added protections in the workplace and a more robust response to psychological harassment and sexual violence in the workplace. This extensive list of amendments is sure to impact how employers manage employment injury files, and more importantly, how these issues are managed and dealt with in the workplace on a day to day basis. Employers with operations in Québec should familiarize themselves with these changes and take any steps necessary to comply.
Need More Information?
For more information or assistance with Bill 42 amendments and compliance with the new provisions, contact Adele Zhang at azhang@filion.on.ca or your regular lawyer at the firm.
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