On October 27, 2020, Quebec’s Minister of Labour, Employment and Social Solidarity, Jean Boulet, introduced Bill 59, An Act to modernize the occupational health and safety regime (“Bill 59”).
The main purpose of this bill, which has been awaited by stakeholders in the field for several years, is to modernize the occupational health and safety regime, particularly with respect to the prevention of and compensation for employment injuries. To do so, Bill 59 amends the Act respecting industrial accidents and occupational diseases1 (“AIAOD”) as well as several other acts and regulations relating to occupational health and safety. It also provides for the enactment of two new regulations, namely the Regulation respecting occupational diseases, which contains, among other things, the new list of occupational diseases for which the presumption of section 29 of the AIAOD will apply, and the Regulation respecting prevention mechanisms, which contains, among other things, the rules applicable to prevention programs.
In order to give you a general overview of the most important changes proposed by Bill 59, our team has conducted a comprehensive analysis of the bill and identified those that represent significant changes from the current regime.
By its section 238, Bill 59 proposes to enact the Regulation respecting occupational diseases. This regulation determines, in Schedules A and B, diseases and the special conditions related to them for the purposes of the occupational disease presumption provided for in section 29 of the AIAOD.
Notable changes include the addition of specific criteria for recognizing a hearing impairment caused by noise as an occupational disease.
Regarding the new Schedules A and B, it is worth noting the addition of post-traumatic stress disorder to the mental disorders section and the addition of a new Oncological Diseases section.
2. Changes to the exercise of the right to return to work by a worker who sustained an employment injury
Certain amendments concern the exercise of the right to return to work by a worker who sustained an employment injury.
For example, the new section 170.3 of the AIAOD provides for a presumption that an employer will be able to reinstate a worker when the worker is again able to carry on his or her employment, equivalent employment, or suitable employment available with the employer, even after the expiry of the period for exercising his or her right to return to work. To rebut this presumption, the employer has to prove the existence of undue hardship in connection with the return to work.
Bill 59 will also affect certain rules applicable to the temporary assignment of work.
Section 179 of the AIAOD is amended to provide for the employer’s obligation to use the form prescribed by the Commission (the Commission des normes, de l’équité, de la santé et de la sécurité du travail or CNESST) to temporarily assign work to a worker, thus putting an end to the homemade forms developed by many employers.
When a worker is assigned work involving fewer hours than what is usually performed in the course of his or her employment, the employer must indicate on this form the option they are choosing with respect to the payment of a salary or wages to the worker.
Employers will have to specify whether they will pay the worker (1) the same wages and benefits as those to which the worker is usually entitled, or (2) wages and benefits only for the working hours provided for by the temporary assignment.
Bill 59 also provides for the possibility of the employer modifying the option chosen. However, a modification may be made only once for the same employment injury.
The medical evaluation procedure before the Bureau d’évaluation médicale (“BEM”) could also be amended by the bill.
Indeed, when a member of the BEM expresses his or her opinion regarding the date on which an employment injury is consolidated, the member must now also express an opinion regarding the fact and degree of the worker’s permanent physical or mental impairment, as well as on the existence of the worker’s functional limitations, where such impairment and such limitations have not yet been determined.
5. Creation of a Committee on Occupational Oncological Diseases and a Scientific Committee on Occupational Diseases
Bill 59 proposes the establishment of a Committee on Occupational Oncological Diseases and a Scientific Committee on Occupational Diseases.
The Committee on Occupational Oncological Diseases will be responsible for determining whether a worker is suffering from an occupational oncological disease, except in cases where the worker is deemed to be suffering from an occupational disease referred to in section 29 of the AIAOD. The Commission will be bound by the diagnosis and other findings of this committee.
For its part, the Scientific Committee on Occupational Diseases will be responsible for making recommendations to the Minister and the Commission with respect to occupational diseases. To this end, it will have to identify and analyze research and studies on occupational diseases, analyze the causal relationships between diseases and the specific risks associated with them, and produce written opinions on the identification of occupational diseases and various contaminants.
Bill 59 amends the process for challenging decisions to allow the challenger, under certain conditions, to refer the dispute directly to the Administrative Labour Tribunal, without first applying for a review of the decision by the Commission. Thus, a person who believes that a decision rendered by the Commission has wronged him or her may elect to apply for a review of the decision within 30 days of its notification or contest it before the Administrative Labour Tribunal within 60 days of its notification. However, only certain decisions may be contested directly before the Administrative Labour Tribunal. The decisions that may be contested directly are those
(1) relating to a matter referred to in paragraphs 1 to 5 of subsection 212(1) following an opinion given by the BEM;
(2) relating to a matter referred to in subsection 230(2) following an opinion rendered by a special committee;
(3) relating to a matter referred to in subsection 233.5(2) following a report made by a committee on occupational oncological diseases; or
(4) rendered under Chapter IX (financing and assignment of costs) or X (employers personally liable for the payment of benefits).
Finally, section 365 of the AIAOD is amended to allow the Commission to reconsider a decision within six months (previously 90 days) to correct any error, unless the decision has been contested before the Administrative Labour Tribunal.
7. Amendments to the provisions relating to the assignment of costs stemming from employment injuries
The sections of the AIAOD relating to the imputation of the costs of an employment injury will also undergo changes that could have significant financial implications for employers.
While it is difficult, as of today, to predict what precisely the consequences of the amendments to these sections will be and how they will be interpreted, there are certain elements that change the rules on cost-sharing and de-imputation and thus deserve our attention:
- The notion of “unduly burdening the employer” will be struck from sections 326 and 328 of the AIAOD, reflecting a desire to limit, or even restrict, the applications made by employers for this reason;
- Section 327 of the AIAOD will be amended in order to specify the situations giving rise to its application. An application under this section can only be made after a final decision has determined the injury or disease to be admissible as an employment injury;
- Finally, section 329 of the AIAOD will contain a new paragraph that clarifies the concept of “a worker already handicapped” provided for in the first paragraph of that section;
- A worker will be considered as already handicapped if, before his or her employment injury, he or she had a deficiency causing a significant and persistent disability and is liable to encounter barriers in performing everyday activities; and
- The concepts of “significant and persistent disability,” “barriers,” and “everyday activities” are new and will, in our view, need to be defined. Nonetheless, it seems to us that the demonstration of a pre-existing handicap giving rise to cost-sharing will not be made easier by the addition of these criteria.
Bill 59 also introduces certain amendments to the Act respecting occupational health and safety, particularly with respect to the application of prevention mechanisms according to the size of each establishment and the risk level of the activities carried on there.
It also proposes amending the Act to require employers to take necessary measures to protect a worker exposed to physical or psychological violence, including spousal or family violence, in the workplace.
Finally, many elements of Bill 59 may or must be specified by regulation. As a result, the Commission will, in some respects, have increased regulatory power.
The introduction of Bill 59 allows us to consider the scope of the amendments proposed by the government to modernize the occupational health and safety regime. Before coming into force, the bill will now have to go through all the usual stages in the development of a bill. It is also likely to be substantially amended between now and its adoption, particularly following special consultations and clause-by-clause consideration in parliamentary committee.
Our Labour and Employment Law team will keep you informed about the evolution and progress of this bill, which will undoubtedly have a significant impact on the occupational health and safety regime as we know it today.
1 Chapter A-3.001.
2 Chapter S-2.1.