Quebec proposes changes to workplace psychological harassment legislation

On November 23, 2023, the Quebec Minister of Labour introduced An Act to prevent and fight psychological harassment and sexual violence in the workplace (“Bill 42”). Bill 42 aims to further prevent ‎and fight psychological ‎harassment and sexual violence in the workplace by proposing modifications to several pieces of employment and labour legislation in the province, including the Act respecting industrial accidents and occupational diseases (“ARIAOD”), the Labour Code, the Act respecting labour standards (“ARLS”) and the Act respecting occupational health and safety (“AROHS”). Some of the key proposed modifications are summarized below:

Proposed modifications to the ARLS

• Broadening employers’ ‎obligations to prevent and ‎manage psychological ‎harassment in the workplace to include ‎actions by “any person”, ‎such as customers or ‎suppliers. While current employer obligations related to psychological harassment have already been interpreted to include this obligation, Bill 42 would now make this an express obligation for employers.
• Additional requirements that must be included in the employer’s psychological harassment policy, including the obligation to outline methods to identify, control, and eliminate risks of psychological harassment, providing information and training programs for employees, offering recommendations for appropriate behaviour during work-related social activities, establishing procedures for making complaints or reports to the employer, implementing measures to protect victims of harassment, defining the process for managing such situations, and ensuring the confidentiality and preservation of relevant documents (e.g., complaints, reports, etc.) for at least two  years.
• Expressly allowing employers to consider previous disciplinary actions related to physical ‎or psychological violence, including sexual violence, when imposing new disciplinary ‎measures on employees for similar misconduct, effectively rendering any “amnesty ‎clauses” in prior agreements or decrees inapplicable.
• Explicitly prohibiting both employer reprisals and sanctions against employees for ‎reporting incidents of psychological harassment behaviour targeting another individual‎.
• Granting mediators the discretion to end a mediation if they find their involvement unsuitable or unproductive given the circumstances.
• Specifying that parties involved in resolving a psychological harassment complaint can mutually waive confidentiality obligations, provided they clearly express this waiver in their settlement agreement.
• Authorizing the Administrative Labour Tribunal to order an employer to pay punitive damages to an employee who has been a victim of psychological harassment, even if the employee is suffering from an employment injury resulting from that harassment.

If passed, Bill 42 will impose stricter measures on employers with more severe penalties for non-compliance. Notably, under the ARLS, failure to comply with provisions related to psychological harassment (namely sections 81.19 and 81.20 of the ARLS) could result in a fine ranging from $600 to $6,000 for a first offense and up to $12,000, for subsequent convictions.

Proposed modifications to the AROHS

• Including a definition of “sexual violence” as “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”.

Proposed changes to the ARIAOD

• 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:‎ (1) 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); (2) the employee contracts an occupational disease within three months following the occurrence of sexual violence at their workplace.
• If adopted, the time limit for filing a claim related to an employment injury resulting from sexual violence in the workplace would be extended to two years after the injury, instead of the current six months, presumably to match the current prescription period under the law for bringing civil claims for psychological harassment.

Because Bill 42 has not yet been adopted, the proposed changes are not yet in effect, and the ‎provisions summarized above may change as Bill 42 works its way through subsequent readings ‎in the Quebec legislature. We will continue to closely monitor the progress of Bill 42 and provide ‎updates in due course. ‎

However, despite Bill 42 not yet being law, we recommend that employers keep these proposed ‎changes in mind and plan to revise their existing policies and procedures accordingly.  ‎Particularly, employers who have not done so already should consider the implementation of ‎training programs addressing psychological harassment, as this will become a requirement if the ‎new legislation is passed‎.