Bill 59, An Act to modernize the occupational health and safety regime (the "Bill"), was passed on September 30 and assented to on October 6. This is the first major revision in this field in decades. The Bill makes significant amendments to both the Act respecting occupational health and safety (hereafter the "OHSA") (R.S.Q., c. S-2.1) and the Act respecting industrial accidents and occupational diseases (hereafter the "AIAOD") (R.S.Q., c. A-3.001).
Certain provisions of the Bill came into force immediately upon assent. Other provisions will come into force up to six months after assent, and still others a year or more after assent. Our team specializing in occupational health and safety law has identified the new provisions and amendments that are most likely to affect employers in processing and managing their occupational health and safety files.
One of the most notable aspects of this reform is the adoption of the Regulation respecting occupational diseases, which includes a schedule listing the conditions that are presumed to be eligible under section 29 of the AIAOD.
The AIAOD already included a schedule with five divisions identifying certain types of diseases as occupational diseases. The schedule of the new regulation contains eight divisions and adds oncological diseases and mental disorders to the categories of diseases covered by the presumption. The newly added oncological diseases and cancers mainly apply to firefighters who have been exposed to gas and smoke. Other additions to the list include post-traumatic stress disorder, under certain circumstances, and Parkinson's disease for agricultural workers.
The initial draft of the Bill introduced, in the schedule, specific eligibility criteria for occupational diseases caused by noise. These draft provisions respecting eligibility criteria were stricken out at the committee stage. The version that was ultimately adopted contains wording identical to that which previously prevailed, but provides that the Commission des normes, de l'équité et de la santé et de la sécurité du travail ("CNESST") has the authority to determine, by regulation, eligibility criteria for occupational diseases caused by noise.
The Bill also establishes new committees. The Comité scientifique sur les maladies professionnelles (Scientific committee on occupational diseases) will identify and analyze scientific research and studies, analyze the causal relationships between specific risks and occupational diseases, and report to the Minister and the CNESST in order to facilitate the updating of the new regulation on occupational diseases.
The sections governing this committee will come into force on the day its members are appointed.
The Comité des maladies professionnelles oncologiques (Committee on occupational oncological diseases), similar to the Comité des maladies professionnelles pulmonaires (Committee on occupational lung diseases), will be responsible for determining whether a worker is suffering from an oncological disease in the case of diseases not explicitly provided for in the schedule to the Regulation respecting occupational diseases. The CNESST will then be bound by the Committee's findings.
The sections that establish this Committee will come into force sixty days after the appointment of all its members.
Another amendment that should be taken into account relates to the Committee on occupational lung diseases. This committee will have more flexibility in that it is now allowed, in certain circumstances, to render its decision based on a simple analysis of the record, without examining the worker.
In addition to the general duties of the employer under the Act respecting occupational health and safety, the Bill requires the employer to take measures to ensure the safety and psychological integrity of workers, in addition to protecting their physical health. Employers must take necessary measures to ensure the protection of a worker exposed to physical or psychological violence, including spousal or family violence, in the workplace.
The identification of risks specific to different workplaces and the prevention measures to be developed will henceforth have to account for both physical and psychological health issues.
The concept of psychological integrity must also be considered when establishing a temporary work assignment for injured workers.
An amendment to the initial draft of the Bill now provides that the location from where the employee works remotely is considered a workplace within the meaning of the OHSA.
This modernizes the OHSA to bring it into line with the current reality of the labour market. However, when combined with the new requirement mentioned above to ensure the protection of any worker affected by a situation of physical or psychological violence, including spousal or family violence, this development considerably increases the burden on employers.
Employers will therefore have to remain vigilant and proactive in the implementation and application of their work policy. It will be interesting to follow the jurisprudential developments on this issue, particularly with respect to the extent of the employer's duties regarding workers' private residences and any other location from which remote work may be carried out.
While the OHSA allows CNESST inspectors to enter workplaces to perform their duties, there is an exception when it comes to remote work when the location is a private residence. However, a judge of the Court of Quebec may authorize an inspector to enter a private residence if he or she has reasonable grounds to believe that the worker or a person in that residence is exposed to a danger that puts his or her life, health or safety at risk.
The amendments to the penal provisions that govern contraventions of and offences under the AIAOD came into force on October 6, 2021. The minimum and maximum fines are, for the most part, doubled or increased even further. However, the fines under sections 236 and 237 of the OHSA remain unchanged.
While the Bill initially provided for major changes to the mechanisms available to employers to reduce the cost impact of workers' compensation cases, representations by employers during the committee stage seem to have secured the withdrawal of these amendments and the preservation of these gains.
Thus, cost sharing for pre-existing disabilities remains unchanged. Other amendments that restricted the possibilities of sharing and transferring the imputation of the cost of benefits, particularly in cases where an employer is unfairly burdened, were also not adopted.
However, the Bill specifically provides for the possibility of obtaining a transfer of imputation if the injury occurred solely because of the worker's gross and wilful negligence. In this situation, and in the case of an injury that arises in the course of care or lack of care, the transfer can only be granted once the final decision has been rendered.
As of October 6, 2022, employers and all other stakeholders will have to use the form prescribed by the CNESST to temporarily assign work to a worker. This provision will help standardize requests for temporary assignments, but may also result in delays in the processing of certain cases, particularly when a stakeholder fails to complete the form or is late in doing so.
The physician in charge of the worker will have to indicate on this form his or her findings regarding the worker's temporary functional limitations. However, these findings cannot be used to initiate the medical evaluation procedure.
Rehabilitation measures will be extended to include more workers and can now begin earlier. Whereas before the right to rehabilitation only arose once it was determined that the worker sustained a permanent impairment due to his or her employment injury, it will now be possible for the CNESST to grant these measures as soon as a claim for an injury is accepted, even before its consolidation.
Employers already have a duty to reasonably accommodate workers who have suffered an employment injury. In this regard, the Bill allows the CNESST, if the period of absence or the situation of the worker warrants it, to provide for his or her progressive return to work in order to facilitate his or her reinstatement with the employer. It also gives the CNESST greater power to determine suitable employment, regardless of the expiry of the period prescribed for a worker to exercise their right to return to work. The CNESST will determine whether accommodations are necessary to enable the worker to work for his or her employer, subject to the employer demonstrating that such accommodation would impose undue hardship.
In this regard, the AIAOD now provides for the CNESST's power to impose a monetary administrative penalty, equivalent to the cost of benefits for a given period, on any employer who refuses to cooperate in the accommodation process or who refuses to reinstate a worker despite a decision establishing the worker's ability to hold his or her job, or an equivalent or suitable job, before the right to return to work expires.
When a member of the BEM rules on the date on which an employment injury is consolidated, the member must now also rule on the existence and degree of the worker's permanent physical or mental impairment and the extent of the worker's functional limitations. If the member is unable to express his or her opinion, he or she will have to explain why. The BEM member may also express his or her opinion regarding the date of consolidation of the injury if he or she considers that the injury no longer requires care or treatment.
As of April 6, 2023, a person who is the subject of a decision of the CNESST regarding medical matters or concerning the financing of the occupational health and safety regime may apply for a review of the decision within 30 days of its notification or contest it directly before the Administrative Labour Tribunal within 60 days of its notification. In addition, as of the same date, the time limit for contesting a decision before the Administrative Labour Tribunal will be within 60 days of being notified of the decision, instead of 45 days.
The purpose of this article was to inform you of the major amendments made to the occupational health and safety regime that are likely to affect the day-to-day management of occupational injury cases in your workplace. It provides an overview of some of the many changes brought about by the coming into force of Bill 59. The scope of these changes and their consequences may vary depending on the sector in which you work. We invite you to contact our occupational health and safety team for any specific questions on this subject.
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.