Recent developments in workplace health and safety
Conflicting case law on the retroactive effect of An Act to modernize the occupational health and safety regime
Since the Act to modernize the occupational health and safety regime (SQ 2021, c. 27) (the “MOHSA”) came into force on October 6, 2021, the Administrative Labour Tribunal (the “ALT”) has adjudicated several cases where it had to decide whether to apply the new provisions to claims submitted before the MOHSA became law.
While the transitional provisions of the MOHSA specify the effective dates of certain sections (for example, the new rules on occupational oncological diseases apply only to claims filed after they came into force), they are silent in many other areas, leaving it up to tribunals or the courts to divine the legislator’s intent.
This is an important issue, because several months or even years may go by before a dispute reaches an ALT hearing. It is not unusual for the facts in a dispute to date back to before October 6, 2021, raising the question of whether the new provisions contained in the MOHSA should apply retroactively.
Most decisions on this question rendered since 20221 have held that the new provisions could apply to claims filed before October 6, 2021, in cases where they do not represent significant changes to the previous rules. However, a new trend in the opposite direction seems to be emerging in case law, holding to the principle that in the absence of language explicitly making a law retroactive, the provisions of that law are to be effective only for the future.2
Note that applying the MOHSA rather than previous legislation could have a very significant impact on certain cases.
An example would be an application to the Bureau d’évaluation médicale (the “BEM”) filed before the new provisions regarding the BEM came into force on October 6, 2022. The new rules state that when a member of the BEM expresses an opinion on the date of consolidation of an employment injury, they must also decide on the percentage of permanent impairment and the worker’s functional limitations, if these have not already been determined. If this is not done, the written opinion must explain the medical reasons why the permanent impairment and functional limitations cannot be determined.
It will be interesting to see how the jurisprudence evolves, as it may have an impact on employers’ contestations.
End of flexibility measures for COVID-19
In response to the various waves of COVID-19 outbreaks during the past three years, the Commission des normes, de l’équité, de la santé et de la sécurité au travail (the “CNESST”) had to constantly update its prevention and claims guidelines.
One of the changes, in May 2021, provided for significant easing of the employer’s burden in the assignment of the cost of claims made by workers who had contracted COVID-19 at work. With the change, the cost of these claims was assigned directly to the classification unit for the employer’s type of business, instead of being assigned in the file of the employer whose worker received benefits. As well, the conditions for transferring costs under section 326 of the Act respecting industrial accidents and occupational diseases (the “AIAOD”) where such costs would “unduly burden an employer” were adjusted, such that the employer no longer had to demonstrate the significant proportion of costs.
The CNESST eased more rules in January 2022, this time to benefit workers. Eligibility rules for COVID-19 as an employment injury were relaxed, mainly due to limited access to PCR tests. Previously, the employee had to submit a claim form along with proof of a positive test and demonstrate that he or she had contracted the virus in the workplace (except for health care workers, who were presumed to have caught it on the job). With the change, a positive PCR test was still required for priority workers, but for all others the CNESST assessed claims for COVID-19 infections based on the worker’s good faith and on the employer’s confirmation of an outbreak or contact in the workplace.
Given the easing of the pandemic in the past few months, the CNESST recently reviewed all of its guidelines once again. On the prevention side, all mandatory measures were made optional, such as masking, two-metre physical distancing in the workplace, and physical barriers. These measures are still recommended in order to prevent respiratory infections of all kinds.
Also, all flexibility measures brought in to address the COVID-19 pandemic officially ended on March 1, 2023.
This means that workers who believe they contracted COVID-19 in the workplace or because of work now have to submit a claim to the CNESST accompanied by a medical certificate from a health care professional confirming the diagnosis, in accordance with the usual rules under the AIAOD. These claims will be treated the same as claims for any other type of employment injury or illness. Note that health care workers will still be required to show a positive COVID-19 test.
For employers, the end of the flexibility measures also means the easing of the cost assignment rules will come to an end. No transfer of costs will automatically apply to occupational COVID-19. Moreover, the temporary CNESST guidelines that facilitated cost transfers under section 326 of the AIAOD, for example if a workstation assessment could not be done, an expert physician’s assessment was cancelled or surgery was postponed, no longer apply. Employers will also need to demonstrate on a balance of evidence that the cost of benefits paid for a given period represents a significant proportion of total costs; the threshold is normally 20% of the total.
Under these circumstances, all employers should step in and proactively manage employment injury files resulting from COVID-19 infections, document the file appropriately, and apply for any transfer of costs in a timely manner, so as to maximize savings, as these claims can be costly.
That being said, the ALT has reiterated on multiple occasions that it is not bound by the CNESST’s internal directives and guidelines, and it will be interesting to follow developments in the jurisprudence on these matters.
Regulation of work by children: new workplace health and safety obligations for employers
On March 28, 2023, Labour Minister Jean Boulet introduced Bill 19, An Act respecting the regulation of work by children.
While this bill proposes substantial amendments to the Act respecting labour standards and its associated regulations, it also contains changes to the Act respecting occupational health and safety.
In particular, the bill would require prevention programs or action plans (for businesses with fewer than 20 workers) to include identification and analysis of risks to workers aged 16 or under.
Health and safety committees and health and safety representatives (or health and safety liaison officers, for employers with fewer than 20 workers) would also have specific responsibilities for identifying risks that may particularly affect those young workers.
It is worth noting that one of the main factors motivating the government to modernize the legislation regulating work by children was a steep rise over the past few years in workplace injuries involving workers under the age of 18.
A parliamentary committee is holding consultations on Bill 19. We will keep a close eye on developments.
1 See Tadros and Bombardier Inc. (Bombardier Aerospace), 2022 QCTAT 3528; Rona Inc. and Pelchat, 2023 QCTAT 1557.
2 See the Letarte decision, 2023 QCTAT 464.