Bill 42, an act to prevent and fight psychological harassment and sexual violence in the workplace, was approved by the Lieutenant Governor of Québec on March 27, 2024. The bill, introduced by Jean Boulet, the Minister of Labour, on November 23, 2023, aims to prevent and fight psychological harassment and sexual violence in the workplace and improve the recourses that are available to victims.
 

The bill follows on the Rapport visant à mettre fin au harcèlement sexuel dans le cadre du travail [report on putting an end to sexual harassment in the workplace] dated March 10, 2023, which includes eighty-three (83) recommendations, one of the main ones being a legislative reform to adapt institutions and labor authorities to the specific issues involved in sexual harassment and sexual assault, as well as victims’ needs.

We will discuss the main issues covered by Bill 42 and summarize the various amendments it introduces, indicating the different dates the new legislative provisions come into force.

Main Issues Covered by Bill 42

Bill 42 amends the Act respecting occupational health and safety (AOHS), the Act respecting industrial accidents and occupational diseases (AIAOD), the Act respecting labor standards (ALS) and the Labour Code, among others.

Definition of Sexual Violence
Firstly, the notion of “sexual violence” has been added to section 1 of the AOHS. It is defined as follows:

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

We understand from the Parliamentary debates that the legislator’s intention is to draw a distinction between sexual violence and psychological harassment of a sexual nature under the ALS. By including “any other misconduct, including unwanted gestures, practices, comments, behaviors or attitudes with sexual connotations” in the definition of “sexual violence,” the conceptual difference between sexual harassment and sexual violence is difficult to discern. It will be interesting to see how the courts interpret this definition and whether a distinction will be drawn between the two notions.

Moreover, since a significant portion of the amendments adopted by Bill 42 is based on the definition of sexual violence, it will be important to see how the courts’ interpretation of this notion evolves. In the meantime, employers should be very cautious in managing situations that could be considered sexual violence, and set up adequate preventive measures.

Note that this new provision came into force on March 27, 2024.

Access to Medical Records
Bill 42 also further limits an employer’s right to access a medical record in the Commission des normes, de l'équité, de la santé et de la sécurité au travail’s (CNESST) possession regarding an employment injury suffered by an employee under sections 38, 38.1 and 39 of the AIAOD.

Under the former legislative provisions, only the health professional designated by the employer had the right to access the medical record in the CNESST’s possession, and he or she could give the employer a summary of it. However, the amendments adopted under Bill 42 state that the employer is not entitled to access an employee’s medical record, and only its designated health representative may do so. In this regard, that individual may only give the employer the information necessary to provide it with a summary of the record.

It should also be noted that these amendments cover any type of employment injury record with the CNESST, not just claims resulting from sexual violence.

To ensure this more stringent restriction to access is complied with, Bill 42 also prescribes the addition of fines in the case of an offense under sections 38, 38.1 and 39 of not less than $1,000 nor more than $5,000 in the case of a natural person, including the health professional, and a fine of not less than $2,000 nor more than $10,000 for an employer who attempts to obtain or obtains, in any manner whatsoever, a medical record to which it does not have a right of access.

These new provisions are sure to affect how employers manage employment injury files. Some health professionals may hesitate to communicate certain information in an employee’s medical record as a precaution to avoid contravening the new restrictions. In such a context, employers’ ability to manage their workers’ employment injury claims will be limited, possibly affecting their right to make a full answer and defense in such matters. Careful wording of the mandates entrusted to these professionals will, therefore, be essential to ensure that employers can adequately manage these files in compliance with the new restrictions.

Note that these new provisions will come into force on September 27, 2024.

Addition of Presumptions
Legal presumptions specific to injuries or diseases resulting from sexual violence have also been added to the AIAOD:

• Section 28.0.1. A worker’s injury or disease is presumed to have arisen out of or in the course of the worker’s work when it results from sexual violence suffered by the worker and committed by the worker’s employer, any of the employer’s executive officers in the case of a legal person or any worker whose services are used by the employer [...].
• Section 28.0.2. A worker’s disease arising within three months after the worker suffered sexual violence at the workplace is presumed to be an employment injury.

With respect to the presumption specific to diseases under section 28.0.2, please note that, for this presumption to apply, the disease must have arisen within three months after the act or acts of sexual violence.

It is important to note that the time limit for filing a claim for an employment injury resulting from sexual violence has been set at two (2) years (rather than six (6) months for other types of injuries). Employers are therefore encouraged to be very careful in managing cases of sexual violence, including by adequately preserving information relating to such situations for at least two (2) years.

Note that these new provisions will come into force on September 27, 2024.

Minimum Content of Policy to Prevent and Process Situations of Psychological Harassment
Bill 42 also prescribes the minimum content of any policy to prevent and process situations of psychological harassment, which an employer must adopt. More specifically, such a policy must set out the following:
 

• Methods and techniques used to identify, control and eliminate the risks of psychological harassment, including a section on behavior that manifests itself in the form of verbal comments, actions or gestures of a sexual nature;
• Specific information and training programs on psychological harassment prevention that are offered to employees as well as the persons designated by the employer to be in charge of a complaint or report;
• Recommendations on behavior to adopt when participating in work-related social activities;
• Procedures for making complaints or reports to the employer or providing information or documents to the employer, as well as the information on the follow-up that must be given by the employer;
• 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;
• Process for managing a situation of psychological harassment, including the process that applies to the holding of an inquiry by the employer;
• Name of the persons designated to receive complaints or reports;
• 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.

We, therefore, encourage employers to act quickly and carefully review their policy to prevent and process situations of psychological harassment to ensure it complies with these new provisions.

Note that these new provisions will come into force on September 27, 2024.

Amnesty Clause Relating to Physical and Psychological Violence
Bill 42 introduces a new provision in the ALS that prohibits the application of an amnesty clause to a collective agreement or decree relating to physical and psychological violence, including sexual violence. Under the new provision, an employer imposing a disciplinary measure concerning a case of workplace violence could take into account a disciplinary measure previously imposed on an employee for violence despite the presence of an amnesty clause in the applicable collective agreement.

Note that this new provision came into force on March 27, 2024.

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such.

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Authors' Bios

	Camille Foczeny is a Human Resources & Health & Safety Advisor at Stikeman Elliott LLP.
	Vincent Lalonde is an Associate at Stikeman Elliott LLP.

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