Quebec’s Bill 42: Enhanced measures for preventing workplace harassment and sexual violence

On March 27, 2024, Bill 42, An Act to prevent and fight psychological harassment and sexual violence in the workplace (“Bill 42”), received royal assent. It aims to prevent and address psychological harassment and sexual violence in the workplace, while also expanding the recourses available to workers.

Several amendments introduced by Bill 42 took effect immediately on March 27, 2024, while others will come into force on September 28, 2024.

Bill 42 amends the following legislation:

1. The Act respecting industrial accidents and occupational diseases chapter A-3.001

a. Introduction of legal presumptions to facilitate the proof of employment injuries related to sexual violence

1. 1. Employment Injuries resulting from sexual violence committed by the employer, one of the employer’s officers or a worker whose services are used by the employer will be presumed to have arisen out of or during the course of employment.
   2. Occupational diseases occurring within three months of experiencing sexual violence in the workplace will also be presumed to be work-related.

These amendments, which take effect on September 28, 2024, shift the burden to employers to disprove the above presumptions. Incidents must therefore be managed diligently, proactively and effectively, and thoroughly documented to ensure issues are promptly identified, corrected and effectively controlled.

b. Extension of the time limit for filing claims

The time limit to file a claim with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”) for an employment injury resulting from sexual violence is extended from six (6) months to two (2) years.

This change, effective September 28, 2024, underscores the importance of maintaining a well-documented record of any relevant incidents, enabling sound claims management.

c. Imputation of costs related to employment injuries resulting from sexual violence

Bill 42 alters the existing rules regarding the imputation of employment injuries. When the injury results from sexual violence, the related benefits will be charged across all employers in all units, rather than to a specific employer, creating an exception to the general imputation rule. This amendment took effect on March 27, 2024.

d. Access to worker’s medical records

Bill 42 revises employers’ rights to access a worker’s medical records held by the CNESST when contesting an employment injury claim. Employers will now receive only summaries of the relevant medical information needed for contestation, limiting their access to complete medical records held by the CNESST. Furthermore, fines may be imposed on employers who attempt to unlawfully obtain or successfully acquire these records.

This provision will come into force on September 28, 2024, and employers are advised to work with health professionals to ensure compliance.

2. The Act respecting labour standards (the “ARLS”)

Most of the amendments to the ARLS came into force on March 27, 2024. These amendments include the following key changes:

1. Expansion of employer obligations: Employers now have a broader responsibility to prevent psychological harassment by “any person” towards its employees, including suppliers, customers, clients or other third parties.
2. Protection against reprisals: The ARLS now prohibits employers from taking reprisals against employees or imposing sanctions for reporting harassment or cooperating in the reporting or complaint process.
3. Amnesty clauses: Bill 42 prohibits the application of amnesty clauses when dealing with disciplinary measures for misconduct involving physical, psychological, or sexual violence. Employers may now consider previous disciplinary measures related to physical, psychological, or sexual violence when imposing new disciplinary actions for similar misconduct, even if an amnesty clause exists in a collective agreement, decree, or employment contract.
4. Punitive damages: Previously, under the no-fault Quebec workers’ compensation regime, punitive damages were not awarded in cases of employment injury resulting from harassment. Bill 42 now allows the Administrative Labour Tribunal to order employers to pay punitive damages in cases of psychological harassment, even if the injury qualifies as an employment injury.
5. Policy requirements. Employers must amend their harassment policy on the prevention and treatment of psychological harassment (the “Policy”) by September 28, 2024, to include the following:

1. 1. The methods and techniques used to identify, control and eliminate the risks of psychological harassment (including a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature);
   2. The specific information and training programs on psychological harassment prevention that are offered to workers and to the persons designated by the employer to manage a complaint or report;
   3. The recommendations on conduct to adopt when participating in work-related social activities;
   4. The procedures for making complaints or reports to the employer or providing information/documents to the employer, the person designated to manage them, as well as the information on the follow-up that must be given by the employer;
   5. The measures to protect the persons concerned by a situation of psychological harassment and the persons who have cooperated in the processing of a complaint or report regarding such a situation;
   6. The process for managing a situation of psychological harassment, including the process that applies to the holding of an investigation by the employer; and,
   7. The measures to ensure the confidentiality of complaints, reports, information or documents received and to ensure a preservation period of at least two (2) years for the documents made or obtained in the course of managing a situation of psychological harassment.

Bill 42 also provides that such Policy must be incorporated into the employer’s prevention program or action plan as required by the Act respecting occupational health and safety. This provision will take effect on a date determined by the government, but no later than October 6, 2025.

3. The Act respecting occupational health and safety (the “AOHS”)

Since March 27, 2024, the AOHS now includes a broad definition of “sexual violence,” which reads as follows:

“sexual violence” means any form of violence targeting sexuality or any other misconduct, including unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly, including violence relating to sexual and gender diversity.

This definition which is likely to invite significant interpretation, includes any form of violence targeting sexuality or misconduct with sexual connotations, whether occurring once or repeatedly, and includes acts relating to sexual and gender diversity.

If Bill 42 affects your organization and you wish to ensure compliance with the new requirements for preventing workplace harassment and sexual violence, please reach out to a member of Miller Thomson’s Labour & Employment team.