The time has come: Quebec employers should assure policies to prevent and manage situations of harassment, violence and discrimination are up to date

On September 27, 2024, several provisions of the Act to Prevent and Fight Psychological Harassment and Sexual Violence in the Workplace will come into effect. Among these, new requirements will be introduced for policies regarding psychological harassment in Quebec. In this article, we have outlined some of the key changes that are important for Quebec employers to know.

Bill 42, An Act to prevent and fight psychological harassment and ‎sexual violence in the workplace (the “Act”) received royal assent on March 27, 2024‎. The adoption of the Act will result in modifications to various labour and employment laws in Quebec, including the Act respecting industrial accidents and occupational diseases (the “ARIOD”), the Act respecting labour standards (the “ARLS”), and the Act respecting occupational health and safety (the “AROHS”). These changes aim to prevent and fight harassment and to provide additional support, guidance and protection to workers who are victims or witnesses of psychological harassment or sexual violence in the workplace.

Several of these modifications took effect on March 27, 2024, while others are set to come into effect at later dates.

The key changes that came into effect in March 2024 are as follows:

• The inclusion of a definition of “sexual violence” in the AROHS;
• The obligation for employers, under the AROHS, to take any other measure that may be determined by regulation to prevent or put a stop to sexual violence;
• The cost of benefits due to an employment injury resulting from sexual violence is imputed to the employers of all the units;
• The time limit for submitting a claim related to an employment injury caused by psychological harassment begins from the date of the Administrative Labour Tribunal’s (the “ALT”) decision, provided that the ALT finds it probable that the psychological harassment caused the injury and that no claim or notice of election for such an injury has already been filed with the CNESST;
• The express authorization for employers to take into account previous disciplinary measures for misconduct relating to physical or psychological violence, including sexual violence, when imposing new disciplinary measures for similar misconduct, effectively rendering any “amnesty clauses” present in prior agreements or decrees inapplicable;
• The authorization for the ALT to order an employer to pay punitive damages to an employee who has been the victim of psychological harassment, even if the employee has sustained an employment injury resulting from that harassment;
• The enforcement of a prohibition under the ARLS preventing employers from imposing reprisals or sanctions on employees who report incidents of psychological harassment targeting another individual;
• The requirement for mandatory training on sexual violence for arbitrators deciding on grievances concerning psychological harassment (context of unionized workers: Labour Code); and
• The option to hold a pre-hearing conference for any grievance is possible upon application by one of the parties (context of unionized workers: Labour Code).

Further modifications are slated to come into effect on September 27, 2024, include:

• Implementing legal presumptions to facilitate the recognition of an employment injury resulting from sexual violence in the workplace;
  • An employee who has experienced sexual violence would benefit from a presumption that they suffered an employment injury or occupational disease if they can demonstrate either of the following:‎ the sexual violence occurred during the course of their work and was committed by ‎their employer, an executive officer of the employer’s company, or any worker ‎employed by the same establishment (unless the violence arises in a strictly private context); or the employee contracts an occupational disease within three months following the occurrence of sexual violence at their workplace;
• Expanding employers’ obligations regarding the prevention and management of psychological harassment in the workplace to explicitly include actions by “any person,” such as clients or suppliers;
• Extending the period for filing a claim related to an employment injury resulting from sexual violence in the workplace to two years, as opposed to the current six months;
• Granting mediators the power to put an end to a mediation if they consider, in the circumstances, that their intervention is not useful or appropriate;
• Specifying that the parties who have settled a complaint concerning psychological harassment may agree to relieve each other from the duty of confidentiality through a written agreement in their settlement agreement clearly outlining same; and
• Introducing additional requirements to be incorporated into psychological harassment policies in Quebec. Employers are now required to adopt policies that:
  • outline methods to identify, control, and eliminate 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);
  • provide information and training programs to employees and to the persons designated by the employer to manage a complaint or report;
  • offer ‎recommendations for appropriate behaviour during work-related social activities;
  • establish ‎procedures for making complaints or reports to the employer;
  • implement measures to protect ‎victims of harassment and define the process for managing such situations;
  • ensure the ‎confidentiality and preservation of relevant documents (e.g., complaints, reports, etc.) for at least ‎two years‎; and
  • designate individuals to handle complaints or reports of psychological harassment in the workplace‎.

These changes will require Quebec employers to update their current harassment policies and practices to ensure compliance with the Act, given that the new requirements significantly exceed the obligations that were previously in place.

Furthermore, there will be changes that will come into effect on the same date as the regulatory provisions regarding prevention and participation mechanisms in an establishment, namely by October 2025, at the latest. Under the Act, the risks related to sexual violence must be taken into account in the identification of psychosocial risks related to work, and the policy to prevent and manage situations of psychological harassment must be included in the establishment’s prevention program and action plan.

Finally, the last change that must come into effect no later than March 27, 2026, is the granting of new regulatory power to the CNESST, allowing it to determine measures to prevent or put a stop to sexual violence. The CNESST will have until March 27, 2026, to adopt this new regulation.

For more information or inquiries pertaining to the obligations of Quebec businesses and employers, including assistance with updating harassment policies and implementing harassment training within your company, please contact one of our DLA Piper (Canada) LLP Quebec employment and labour lawyers.