Bill 59, the Act to modernize the occupational health and safety regime, was adopted on September 30, 2021 by the Québec National Assembly and received assenton October 6, 2021. It is the most important modernization process of the Act respecting occupational health and safety (hereinafter, the "AOHS") and the Act respecting industrial accidents and occupational diseases (hereinafter, the "AIAOD") in over 35 years.Further to our podcasts of April 26, 2022, in which we presented a review of the amendments already in force and to come to the AOHS and the AIAOD, this is a reminder of the amendments that came into force as of October 6, 2022.
Medical Evaluation Bureau
First of all, changes have been made with respect to the subjects on which a member of the Medical Evaluation Bureau (hereinafter, the "BEM") may rule during an assessment, more specifically with respect to the existence and assessment of physical or psychological permanent impairment and functional limitations. Prior to October 6, 2022, when a member of the BEM was required to rule on one of the five points of section 212 of the AIAOD, the BEM had the discretionary power to make a determination on certain medical matters for which the treating health professional or the health professional designated by the employer or the CNESST had not, if he or she deemed it appropriate.
As of October 6, 2022, the new provision stipulates that the member of the BEM who rules on the date of consolidation must rule on the existence of functional limitations and on the percentage of permanent impairment, unless there are medical reasons for not doing so.
We believe that this provision will allow for faster processing of compensation cases.
Temporary work assignment
Several significant changes also come into effect with respect to temporary work assignments.
Prior to October 6, 2022, the AIAOD did not impose any specific form for the employer to propose a temporary assignment to the treating physician. The CNESST proposed a template but it was not mandatory.
The new provisions of the AIAOD now provide that the employer must use the form provided by the CNESST to submit a temporary assignment to the treating physician. It is important to note that the form allows the employer to propose a maximum of two (2) temporary assignments and that the employer must indicate whether the temporary assignment will be for less hours than the worker's regular schedule. For his part, the treating physician will have to detail in the form the worker's temporary physical or psychological functional limitations, which he was not required to do previously. The employer must then transmit the form to the CNESST, whether or not the temporary assignment is authorized by the treating physician.
On this same form, the employer must indicate the option he chooses for the payment of wages when the worker is on a temporary assignment and must inform the CNESST before the beginning of the temporary assignment, if namely the employers opt for:
- payment of 100% of the wages and employment benefits that the worker would have received had he continued to be employed; or
- payment of wages for hours worked offset by payment of income replacement indemnities (hereinafter, "indemnities") from CNESST for lost earnings.
It should be noted that the employer may ask the CNESST to change the option chosen for the same temporary assignment only once.
Although these new measures entail increased administrative management for both the employer and the CNESST, they will still allow for better follow-ups of the temporary assignment and a faster return to work.
Accommodations
Major changes are also in effect with respect to the notion of accommodation for a worker who has suffered an employment injury. The right to return to work has been improved in order to facilitate the reinstatement of a worker in his position, or an equivalent or suitable position.
The purpose of these changes is to involve the worker and the employer, in conjunction with the CNESST, in the determination of a suitable position and, where applicable, a suitable rehabilitation program, whereas prior to October 6, 2022, this process was handled by the CNESST alone, taking into consideration information gathered from the parties.
It is then expected that the CNESST will assess, in collaboration with the employer and the worker, the need for a reasonable accommodation to reinstate the worker, such as an accommodation and modification of the work schedule or organization. Only the CNESST will be able to determine whether a reasonable accommodation is necessary to enable the worker to perform a suitable job. However, the employer will still be able to demonstrate that the accommodation imposes undue hardship.
The CNESST may also authorize a gradual return to work and the accompanying financial support to facilitate the worker's reinstatement.
In addition, the CNESST may order the employer to pay an administrative monetary penalty when the employer refuses to cooperate in the return-to-work process or to reinstate the worker despite a decision to that effect. The penalty will be equivalent to the indemnities to which the worker could have been entitled during the period the employer was in default and the amount of the penalty may be up to a maximum of one year's income replacement indemnities. This amount will be paid into the Occupational Health and Safety Fund.
These changes follow the 2018 Supreme Court of Canada's Caron decision on an employer's duty to reasonably accommodate an employee following an employment injury.
In light of this decision, it was established that employers should demonstrate to the CNESST and ultimately to the Labour Tribunal that a rigorous analysis of possible accommodation measures has been conducted.
The new provisions adopted by the Bill seem to be in line with the Caron decision, since only the CNESST will be able to determine whether a reasonable accommodation is necessary to allow the worker to perform a suitable job.
Suitable employment elsewhere in the labour market
Finally, a worker for whom a suitable job is identified elsewhere in the labour market will have the obligation, as of October 6, 2022, to participate in the job search support and accompaniment services offered by the CNESST. This participation was optional under the previous provisions.
In addition, it is anticipated that if a worker fails or refuses to participate, payment of the indemnities may be reduced or suspended.
We believe that this is a positive change for the employer as it is known that a worker, for whom a suitable employment elsewhere in the market is determined, has a maximum of one (1) year to find a job in the labour market and receives indemnities for the duration of that period until he finds that job. This will certainly speed up this process which can sometimes be costly for the employer.
Conclusion
In short, these new provisions which are in effect as of October 6, 2022 have a significant impact on the day-to-day management of occupational injury claims as well as on the return-to-work process. It is therefore essential that employers remain on the lookout for any new directives that may be issued by the CNESST.
Finally, we would like to remind you that other occupational health and safety provisions will come into effect in the coming months until January 1, 2024. We invite you to read our future blog for updates.
The masculine gender is used in this text only to simplify the form and make it easier to read.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
