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Occupational Health and Safety Legislation in Quebec: New Realities and Challenges for Employers

Occupational Health and Safety Legislation in Quebec: New Realities and Challenges for Employers
November 4, 2020

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):

  1. By identifying and analyzing the research and studies on occupational diseases
  2. By analyzing the causal relations between diseases and contaminants or the risks particular to a type of work
  3. 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:

  1. Eliminating the risk
  2. Replacing materials, processes or equipment in order to eliminate or reduce the risk
  3. 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
  4. Installing signals, such as a sound alarm or a warning light, to increase workers’ awareness of the risk
  5. Implementing administrative control measures regarding the risk, such as worker training and the use of safe working methods and techniques
  6. 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:

  1. January 1, 2023, if the risk level associated with the establishment is high
  2. January 1, 2024, if the risk level associated with the establishment is medium
  3. 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.

For more information, please contact:

Natalie Bussière                                      514-982-4080
Francis Laperrière Racine                       514-982-4149
Sarah Rohmann                                      514-982-4120

or another member of our Employment & Labour group.