On October 27, 2020, Quebec's Minister of Labour,
Employment and Social Solidarity, Jean Boulet (Minister),
introduced Bill 59,
An Act to modernize the occupational health and safety
regime (Bill 59) in the Quebec National Assembly. If
adopted, Bill 59 would amend Quebec's legislation and
regulations on occupational health and safety, industrial accidents
and occupational diseases. It would also impose new obligations on
employers with respect to these areas.
Bill 59 also sets out new health and safety obligations
applicable to construction sites, which will be the subject of an
upcoming bulletin.
The following is an overview of several key amendments proposed
under Bill 59.
ACT RESPECTING INDUSTRIAL ACCIDENTS AND OCCUPATIONAL DISEASES
Bill 59 seeks to amend certain provisions of the Act respecting industrial accidents and occupational diseases (Act).
Occupational Diseases Committee
Bill 59 provides for the establishment of a scientific
committee on occupational diseases (Committee), which would make
recommendations regarding
occupational diseases to the Minister or to the Commission des
normes, de l'équité, de la santé et de la
sécurité du travail (CNESST):
- By identifying and analyzing the research and studies on occupational diseases
- By analyzing the causal relations between diseases and contaminants or the risks particular to a type of work
- By producing written opinions on the identification of occupational diseases, on contaminants or on the particular risk factors related to occupational diseases and on the criteria for determining them
The Committee would be made up of five members, whose term of
office may not exceed five years and would be renewable.
The Committee's opinions and recommendations would be made
public by the CNESST on its website no later than one year after
receiving them, subject to the provisions of the Act respecting
Access to documents held by public bodies and the Protection of
personal information.
Occupational Diseases Regulation
Bill 59 provides for the enactment of the Regulation
respecting occupational diseases, which aims to facilitate access
to the workers' compensation regime with respect to
occupational diseases. This regulation would replace and enhance
Schedule I of the Act.
Schedules A and B of the above-mentioned regulation specify the
diseases and related special conditions for the purposes of the
occupational disease presumption provided for in section 29 of the
Act. The regulation also specifies the applicable time limit for
claims regarding such diseases.
The regulation sets out a new list of cancer types to be considered
as occupational diseases, and establishes an occupational disease
presumption with regard to post-traumatic stress disorder for
workers who are exposed, whether repeatedly or in an extreme
manner, to serious situations. Under Bill 59, employers would
be obligated to identify and analyze in their prevention programs
the psychosocial risks related to the work in their establishments
(see below).
ACT RESPECTING OCCUPATIONAL HEALTH AND SAFETY AND RELATED REGULATIONS
Bill 59 provides for the amendment of certain provisions of
the Act respecting occupational health and safety (AOHS) and its
regulations, as well as the adoption of a new regulation, the
Regulation respecting prevention mechanisms (Regulation).
The Regulation would set out the risk levels associated with the
activities carried out in an establishment for the purposes of
preparing and implementing a prevention program, as well as
designating a health and safety representative. Risk levels would
be classified into three categories (low, medium and high) for
activities consistent with those in the North American Industry
Classification System (NAICS Canada) published by Statistics
Canada.
Various factors would be taken into account to determine whether a
workplace is subject to prevention mechanisms, including risk
levels and the number of workers in the establishment. Bill 59
also provides that the number of workers in an establishment is to
include those whose services are hired out to the employer (e.g.,
through an employment agency).
Prevention Mechanisms
Prevention Program
Under Bill 59, every employer would have to prepare and implement a
prevention program specific to each establishment employing at
least 20 workers in the course of a given year. However,
Bill 59 also provides that under certain conditions, an
employer may prepare a single prevention program and implement it
in all of its establishments. Where the risk level associated with
the activities carried out in an establishment is medium or high,
the employer would have to prepare and implement a prevention
program specific to that establishment, regardless of the number of
workers.
An employer would have to implement a prevention program within a
period of one year from the time it becomes subject to the
obligation to prepare such a program. Prevention programs would
have to be updated on a yearly basis.
The measures and priorities for action to eliminate or, failing
that, to control risks that may affect the health and safety of the
establishment's workers, identified by the employer in
preparing its prevention program, must apply the following
hierarchy of prevention measures:
- Eliminating the risk
- Replacing materials, processes or equipment in order to eliminate or reduce the risk
- Implementing technical control measures regarding the risk associated with the work environment and equipment, such as installing a ventilation system and adding a safety guard on a machine
- Installing signals, such as a sound alarm or a warning light, to increase workers' awareness of the risk
- Implementing administrative control measures regarding the risk, such as worker training and the use of safe working methods and techniques
- Putting collective or individual protective means and equipment at the workers' disposal and implementing measures to ensure that they are properly used and maintained
Bill 59 provides that where risks cannot be eliminated, the
employer must control them by using a combination of the above
prevention measures.
Under Bill 59, an employer would also have to indicate every
three years, using the form prescribed by the CNESST, the
priorities for action determined as part of its prevention program
as well as the follow-up of the measures implemented to eliminate
and control the risks identified for those priorities.
Occupational Health and Safety Committee
Bill 59 provides that an occupational health and safety committee
(OHS Committee) would have to be formed in any establishment that
employs at least 20 workers in a given year.
The current wording of the Regulation sets out minimal standards
with respect to an OHS Committee, which would be applicable in the
absence of an agreement between the employer and the certified
association(s) representing the workers in a given establishment
or, where there is no such association representing the workers,
the majority of the workers in that establishment. The minimal
standards set out by the Regulation are: (i) the composition and
maintenance of the OHS Committee; (ii) the procedure to designate
workers' representatives; (iii) the OHS Committee's rules
of operation (e.g., frequency of meetings); and (iv) training for
OHS Committee members.
Workers who are members of the OHS Committee and who must take time
off to attend training programs required under Bill 59 and the
Regulation are to be compensated by their employer.
Health and Safety Representative
Bill 59 sets out that when an OHS Committee is formed within an
establishment, at least one health and safety representative
(Representative) would have to be designated from among that
establishment's workers. Representatives would be, by virtue of
office, members of the OHS Committee.
According to the Regulation's current wording, where an
establishment employs at least five workers and the risk level is
high, or where it employs at least 10 workers and the risk level is
medium, at least one Representative would be designated from among
the establishment's workers.
Bill 59 provides that a Representative would have to participate in
training programs whose content and duration are determined by the
Regulation. Workers acting as Representatives would be compensated
by their employer for their participation in training
programs.
The minimum amount of time that a Representative should devote to
his or her functions would be established at the beginning of each
year by the Regulation, according to the number of workers in the
establishment and the latter's risk level.
Register of Contaminants
Employers would have to draw up and maintain a register of the
contaminants and dangerous substances, identified by regulation,
that are present in their respective establishments. The content of
the register, which may include, among other things, a list of the
employees exposed to those contaminants or dangerous substances,
and the manner in which the register is to be sent to the
Commission, would be determined by regulation.
CNESST: Enhanced Powers
Under Bill 59, if the CNESST considers it advisable for protecting
workers' health or ensuring their safety and physical
well-being, it may require an employer to prepare and implement a
prevention program within the timeframe determined by the CNESST,
regardless of the number of workers in the establishment or the
risk level associated with the activities carried out there. The
CNESST may also order an employer to provide it with a prevention
program and, where it considers it advisable, request that changes
be made to such program.
The CNESST may also require that a Representative be designated in
an establishment where it considers it advisable for protecting
workers' health or ensuring their safety and physical
well-being.
Workplace Violence
Under Bill 59, employers would be obligated to take the necessary
measures to ensure the protection of a worker exposed, within the
workplace, to a situation of physical or psychological violence,
including spousal or family violence.
Transitional Provisions
Whether or not an employer has a prevention program in effect on
January 1, 2022, it should update that program or,
depending on the level of risk associated with its establishment,
develop and implement a prevention program, form an OHS Committee
and designate a Representative in accordance with the provisions of
Bill 59, no later than:
- January 1, 2023, if the risk level associated with the establishment is high
- January 1, 2024, if the risk level associated with the establishment is medium
- January 1, 2025, if the risk level associated with the establishment is low
OTHER AMENDMENTS
Act respecting labour standards
Bill 59 also amends the Act respecting labour standards so that
certain categories of employers currently exempt from the
contribution that finances the application of that act (namely
municipalities, learning establishments, the government and its
ministries, as well as the National Assembly) would be subject to
it.
Act to establish the Administrative Labour Tribunal
Bill 59 also amends the Act to establish the Administrative Labour
Tribunal by introducing, among other things, provisions allowing
the Administrative Labour Tribunal to take measures against
vexatious or quarrelsome conduct, and granting the Administrative
Labour Tribunal the power to dismiss ex-officio or upon request any
abusive or dilatory application.
Originally Published by Blakes, November 2020
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