On April 3, 2012, the Quebec Labour Minister, Lise Thériault, tabled Bill 60, entitled An Act mainly to modernize the occupational health and safety plan and extend its application to domestics. The highlights of the proposed legislation are presented in this bulletin.
The current Act respecting industrial accidents and occupational diseases was adopted back in 1985. Since then, the Act has remained essentially the same, even though the labour market has evolved. For many years, both employers and workers have been calling for changes to the province's occupational health and safety plan.
In the spring of 2009, the board of directors of the Commission de la santé et de la sécurité du travail (CSST) voted to set up a working group to make recommendations for modernizing the plan. The group, chaired by Mr. Viateur Camiré, was made up of equal numbers of representatives appointed by the union federations and the employers' associations. The group was entrusted with reviewing the problems raised by the union and management sides, and any other groups that they saw fit to consult.
After the work was completed, even though the members had not come to a consensus on the solutions proposed, a report was issued by the working group's chair in December 2010. The recommendations touched on a range of different topics: mechanisms for the prevention of employment injuries included in the Act respecting occupational health and safety, financial incentives to encourage prevention efforts, temporary assignment, treatment provided to injured workers, amounts included in income for compensation purposes, the job search year, etc.
The tabling of the Committee's report thus set the stage for the discussions that ensued among the CSST's directors. In the fall of 2011, the board of directors made 31 proposals for legislative amendments to the Labour Minister. The proposals relate to prevention of and compensation for employment injuries, as well as governance of the CSST.
In the bill tabled by the Labour Minister, some of the proposals of the CSST's board of directors are presented exactly as the board originally formulated them, others are reworked, and still others are not included.
Legislative amendments related to prevention (Act respecting occupational health and safety)
Broadening the scope of mechanisms for the prevention of employment injuries has long been the subject of discussion. The bill authorizes the CSST to enact regulations setting rules for the categories of establishments it determines which are different from the rules provided in the Act in relation to prevention programs, health and safety committees and safety representatives.
That being the case, the broadening that may ultimately take place will not be known until the CSST adopts such regulations. Information provided by the CSST is to the effect that the status quo will be maintained for groups with priority levels 1, 2 and 3, but more flexible prevention mechanisms will be introduced for groups 4, 5 and 6:
- A prevention program will be mandatory for establishments with 20 workers or more;
- Formation of a health and safety committee will be mandatory for establishments with 35 workers or more;
- The provisions relating to the safety representative will not apply to employers in groups 4, 5 and 6. The health and safety committee that is formed will then inherit additional responsibilities, as appropriate.
The net effect is that some 14,000 Quebec businesses will, in future, need to have mechanisms in place for the prevention of employment injuries. It is estimated that 80% of them have already adopted such mechanisms, particularly in unionized work environments. It will thus be necessary to determine if these negotiated mechanisms can be tailored to comply with the legal requirements.
The CSST currently expects these provisions to be phased in over a four-year period. To facilitate what will be a significant transition, plans include making model employment injury prevention and occupational health programs available to affected employers.
Multi-establishment prevention mechanisms
At the present time, an employer required to establish one or more employment injury prevention programs must adopt such a program and have a health and safety committee for each of its establishments. The bill gives an employer with more than 50 workers working in two or more establishments the option of establishing a single prevention program for all of them and of setting up a single health and safety committee. Where it sees fit, the CSST may nevertheless call for a program specific to each establishment to be created.
Occupational health program
The employment injury prevention program that an employer adopts is to include an occupational health program. In this connection, the bill authorizes the CSST, after consulting with the Minister of Health and Social Services, to set the occupational health priorities to be pursued in the territories or in the establishments it determines. Accordingly, the occupational health program that an employer adopts will need to comply with the program of priorities that has been set by the CSST and include an action plan whose implementation is overseen by the physician in charge of the establishment.
In the same vein, the powers and obligations of the public health director are amended to reflect the fact that each employer will now be responsible for developing an establishment-specific occupational health program in cooperation with the physician in charge of the establishment.
Communication of information to the RBQ
The bill also requires the CSST to communicate to the Régie du bâtiment du Québec (RBQ) any information relating to a conviction for an offence under the Act respecting occupational health and safety which the RBQ needs in order to enforce the provisions of the Building Act. In certain cases, the information conveyed could result in the suspension of licences. The intention of the provision is to improve protection for construction workers.
It should be noted that the bill provides that the CSST may grant assessment discounts to employers who put measures in place to prevent employment injuries. The terms and conditions associated with such discounts will be determined by regulation, which may provide for a form of certification to be held.
For the time being, therefore, there is no way of knowing how large the discounts could be or on what conditions they might be granted.
Status quo on the For a Safe Maternity Experience program
The CSST's board of directors had recommended that regulatory authority be granted in connection with the program entitled "For a Safe Maternity Experience." A number of stakeholders pointed out, among other things, that the program was not being applied uniformly.
In spite of this, the bill says nothing about the program, which suggests that for now, the status quo will prevail.
Legislative amendments related to compensation (Act respecting industrial accidents and occupational diseases)
The bill proposes a variety of regulatory mechanisms relating to the provision of workers' compensation benefits. At this time, the CSST anticipates that these provisions will be phased in over a four-year period.
Modification of initial report
Where the physician who takes charge of a worker who has suffered an employment injury expects the injury to take more than 14 days to consolidate from the date the worker became unable to carry on his or her employment, the physician will have to send the CSST a new medical report stating, among other particulars, the date on which the industrial accident occurred, the main diagnosis, the foreseeable time the employment injury will take to consolidate, the fact that the worker is awaiting or receiving investigation or treatment, and the possibility of permanent sequelae.
The CSST also plans to have this same form include a request for information about the possibilities for a return to work. Some believe that this will allow for improvement in the area of temporary assignment. We will come back to the question of temporary assignment later on.
The worker's physician will also have to inform the CSST and send a new medical report if changes in the worker's pathological condition significantly alter the nature or duration of the care or treatment prescribed.
Currently, section 194 of the Act respecting industrial accidents and occupational diseases provides for the cost of medical aid to be borne by the CSST. The bill would amend this section by adding "up to the monetary limits determined in this Act or the regulations." This effectively means that the Act or a regulation may prescribe monetary limits that are to apply, among other things, to the cost of treatment provided to a worker who has suffered an employment injury.
Also noteworthy is the provision the bill makes for regulatory authority to be introduced over the medicines and other pharmaceutical products that may be prescribed to a worker who has suffered an employment injury and for the process for adjusting the rates charged by healthcare providers to be made more flexible.
Bureau d'évaluation médicale
As it stands now, the members of the Bureau d'évaluation médicale ("BEM") may, in their discretion, express an opinion on any of the five matters set out in section 212 of the Act respecting industrial accidents and occupational diseases, even where the physician in charge of the worker or the health professional designated by the employer did not express an opinion on these matters. The bill makes it a requirement for the BEM to issue an opinion on the existence and assessment of any functional disability and on the existence or degree of any permanent physical impairment once the worker's employment injury is consolidated, unless such an opinion cannot be formed for medical reasons.
Employment reinstatement during the consolidation period
Certain measures are proposed to facilitate the reinstatement of a worker who has suffered an employment injury.
The bill provides for the adoption of an employment reinstatement program, which may be prepared and implemented at the time an employment injury is recognized and must be approved by the physician in charge of the worker. Such a program will constitute a form of rehabilitation during the medical consolidation period, providing for the worker to be accompanied in the workplace, evaluated by an interdisciplinary team, and so on. This change is introduced in conjunction with the Synchro action plan which was initiated by the CSST in an effort to reduce chronicity levels.
Section 142 of the Act respecting industrial accidents and occupational diseases, dealing with the suspension of indemnity payments, may apply if the worker fails or refuses to make use of the measures or services included in his or her employment reinstatement program.
Where work is assigned to the worker on a temporary basis, an opinion of the physician in charge that is favourable to such assignment will have to be recorded on the form prescribed by the CSST. Contrary to what the employers' associations were asking for, no substantial changes to the form currently provided by the CSST are foreseen. Accordingly, the physician in charge of the worker will not have to indicate the worker's temporary functional disabilities on the form.
Job search period
The year that the Act respecting industrial accidents and occupational diseases grants to a worker who is unable to return to his or her pre-injury employment in which to look for alternative work is a much longer period than is granted by the legislation of other Canadian provinces, and the employers' associations had called for this period to be reduced.
The length of the period has not been reduced in the bill, but the CSST will now provide support services to the worker during the job search period.
Section 142 of the Act respecting industrial accidents and occupational diseases, which deals with the suspension of indemnity payments, may apply if the worker fails or refuses to make use of the measures or services included in his or her job search support program.
Legislative amendments affecting domestics
Under the amended definition, a "domestic" for purposes of the law will mean a natural person whose primary duty under a contract of remunerated employment entered into with an individual consists in doing housework, caring for or supervising a child or a person who is ill, disabled or elderly or performing any other houseworker's task in the individual's dwelling.
The bill extends the protection afforded by the plan to cover domestics, with the exception of those who work in that capacity sporadically or for a short period of time. The intent of the definition, according to the CSST, is to exclude domestics who provide their services for only a few hours a week.
An individual who retains the services of a domestic on a regular or long-term basis will therefore be considered the domestic's employer and will have to pay assessments to the CSST.
Legislative amendments affecting governance of the CSST
A number of amendments that relate to governance of the CSST are proposed. The most significant appears to be the amendment dealing with the make-up of the CSST's board of directors. Currently composed of seven members chosen from the lists provided by the union associations and seven members chosen from the lists provided by the employers' associations, in future the board would consist of six members chosen from the lists provided by each side and two independent members. Some see the potential for this proposal to upset the parity balance.
Provision is also made for the board of directors to establish a governance and ethics committee and an audit committee, with an independent chair in each case.
Legal persons and partnerships
In a recent ruling, which has since been appealed, the Quebec Superior Court had affirmed that the Act respecting occupational health and safety left a "legal vacuum" insofar as sentencing of limited partnerships was concerned.1
Consequently, the bill provides for the Code of Penal Procedure to be amended so as to make its provisions that apply to legal persons also apply to partnerships, with the necessary modifications. It is specifically stated that a sentence that is applicable to a legal person is also applicable to a partnership.
Taken as a whole, Bill 60 appears to reflect a desire to strike a compromise between the union and employer positions. Thus, the fundamentals of the occupational health and safety plan have been preserved, while efforts have been made to streamline some of the regulatory mechanisms that apply to the provision of benefits. Although some may see the changes as but a small step in the right direction, the wording of the bill itself is indicative of a willingness to continue the process of modernizing the plan: every five years, the Minister is to report to the Government on the carrying out of the Act respecting occupational health and safety and the Act respecting industrial accidents and occupational diseases and on the advisability of maintaining their provisions in force or amending them.
In short, a certain dissatisfaction can be felt on both sides. Several groups have already served notice of their desire to be heard before a parliamentary committee. Consequently, the true effects that the bill will have on the occupational health and safety plan will not be known until it wends its way through the legislative process.
1 Commission de la santé et de la sécurité du travail c Dollarama, s.e.c, 2011 QCCS 5630; motion for leave to appeal granted (C.A., 2012-03-23), 500-10-005048-119, 2012 QCCA 555.
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