Employers: 6 main amendments to the Act respecting labour standards

November 22, 2018

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On June 12, 2018, the Act respecting labour standards (the “Act”) was amended to give employees more flexibility in order to improve their family work balance. Here is an overview of the main changes made to the Act.

The reference guide specifies which amendments will be coming into force on January 1, 2019. All other amendments have been in force since June 12, 2018.

Prohibition on differences in treatment based on employment status

For employees who perform the same tasks in the same establishment, the rate of wage, the length of vacation or the method of calculating the related indemnity cannot be different solely based on their differing employment status.

For example, a temporary employee and a regular employee performing the same tasks in the same establishment must be remunerated on the same wage rate.

Prohibition on differences in treatment based on hiring date

Improvement of the existing protection against differential conditions of employment based on the hiring date of employees who perform the same tasks in the same establishment.

Pension plans and other benefits plans have been added to the list of employment conditions that cannot be the object of differential treatment such as wage, hours of work and various leave entitlements provided for in the Act.
(Employers who implemented pension or benefits plans with differences in treatment based on the hiring date of the employees before June 12, 2018, will not be required to amend them..)

An employee who believes he or she is a victim of differential treatment with respect to pension plans or other benefits plans may file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) within 12 months of finding out this differential treatment.
(This amendment does not prohibit distinctions based on employment status. Two employees with different statuses may still be entitled to different benefits and pension plans, subject to possible recourses under the Charter of human rights and freedoms (e.g., discrimination based on age, social condition, etc.).

Overtime

An employee may now refuse to work more than two hours (instead of four) after his regular daily working hours.

Therefore, an employer cannot force an employee to work more than two hours of overtime, except in special circumstances provided for in the Act which allow the employer to demand that the work be carried out:

Danger to the life, health or safety of employees or the population at large
Risk of destruction or serious deterioration of movable or immovable property
Cases of superior force
Contravention of the employee’s professional code of ethics

Work schedule

Employees may refuse to work if they are not informed at least five days in advance that they will be required to work.

Thus, employers cannot force employees to work without prior notice of at least five days, except in special circumstances provided for in the Act:

Shift extended by a maximum of two hours (refer to previous section - Overtime)
Employees required to remain available given the nature of their duties
Agricultural workers (e.g., tasks related to the sowing, harvesting, monitoring and maintenance of agricultural production)
Danger to the life, health or safety of employees or the population at large
Risk of destruction or serious deterioration of movable or immovable property
Cases of superior force
Contravention of the employee’s professional code of ethics

Important: this amendment gives employees a right of refusal, but places no obligation on employers to provide employees with their work schedule five days in advance.

Staggering of working hours

An employee (non-unionized) may make an agreement with the employer, on an individual basis, to stagger his working hours over a period of more than one week for the purposes of calculating overtime, without prior authorization of the CNESST.

This agreement must meet the following conditions:

The agreement is made in writing.
The working hours are staggered over a maximum period of four weeks.
Each week of the specified staggering period may not exceed the business’ regular work week by more than 10 hours, which is 40 hours a week for most employees.
The weekly average of the hours worked during the staggering period may not exceed the number of hours of the regular work week, which is usually 80 hours over a two-week staggering period, for example.
The written agreement provides that each party may resiliate the agreement with notice of at least two weeks before the end of said agreement.

Despite this amendment to the Act, employers may still ask for the authorization of the CNESST to stagger all of their employees’ working hours. In such cases, the CNESST policy entitled Politique sur l’étalement des heures de travail [Policy on the staggering of working hours], providing for more restrictive terms of eligibility, must be applied.

Domestic or sexual violence

Employees who have been the victim of domestic or sexual violence may now benefit from a leave of up to 26 weeks within a 12 month period, just like employees who must be absent due to sickness, organ or tissue donation, an accident or a criminal offence.

Even if the employee has not accrued three months of uninterrupted service Entry into force January 1, 2019.
The employment relationship is maintained during this leave

The first two days of absence owing to sickness, an organ or tissue donation for transplant, an accident, domestic violence, sexual violence or a crime will be paid.

Maximum of two paid days of leave in a given year in these situations, as for absences for family and parental reasons (refer to following section).

Family and parental leave and absences

General improvements: certain leave entitlements have been reformulated to ensure that employees caring for a relative or acting as a caregiver for someone may benefit from such entitlements and be provided with employment protection for a longer period.

The duration of the leave of absence increases from 12 to 16 weeks over a period of 12 months when an employee must be absent because of the state of health of a relative or a person for whom the employee acts as a caregiver.

This leave entitlement is 36 weeks long if the relative or person is a minor child of the employee. Other leave entitlements have also been improved or added, such as leave in the event of the disappearance or death of a minor child.

Remuneration for the first two days of a leave of absence to fulfil obligations relating to the care, health or education of theemployee’s child or the child of the employee’s spouse, or because of the state of health of the employee’s spouse or relative Entry into force January 1, 2019

An employee may be absent from work for ten days per year to fulfil family and parental responsibilities.

The first two annual leave days that are taken will be paid if the employee has three months of uninterrupted service.
pour un salarié justifiant trois mois de service continu.

Maximum of two paid days of leave of absence in a given year for family or parental reasons, or for sickness, an organ or tissue donation for transplant, an accident, domestic violence, sexual violence or a crime (refer to previous section).

Other leave entitlements related to family or parental responsibilities

Authorized leave of absence for two paid days (instead of one) in the event of the death or funeral of an employee’s spouse or child, the spouse’s child, the employee’s father, mother, brother or sister. The employee may also be absent from work, without pay, for three more days (instead of four) on such occasion.

In the event of a birth, an adoption or the termination of a pregnancy, absence is authorized for the first two days (paid), even if the employee has not accrued 60 days of uninterrupted service.
The option of taking three additional unpaid days off is maintained.

Statutory general holidays

An employee is entitled to an indemnity or a compensatory leave, at the employer’s choice, if a holiday provided for in the Act does not coincide with an employee’s regular work schedule.

Annual leave

Amended so that employees with three years of service (instead of five) are entitled to an annual leave for a minimum duration of three consecutive weeks.

Despite this amendment, employees will have to have completed the reference period in which they will have accrued at least three years of service to be entitled to a third week of annual leave.

Harassment prevention and complaint processing policy

Obligation to adopt a harassment prevention and complaint processing policy

Psychological harassment, including sexual misconduct

New time limit to file a compliant for harassment

The 90-day time limit to file a complaint has been extended to two years starting from the last incidence of the alleged conduct.

This longer time limit does not apply to complaints filed or prescribed before June 12, 2018 (Dinu v. 9227-3754 Québec Inc., 2018 QCTAT 4502)
It applies to complaints filed with the CNESST or grievances filed in accordance with the collective agreement.

Best managerial practice: document all reported incidents, the decisions made subsequently and the reasons behind them, in order to include the information gathered in the response to the complaint, which may be submitted several months after the events.

Complaint filed with the Commission des droits de la personne et des droits de la jeunesse (CDPDJ – the Human Rights Commission) in the event of sexual harassment

After obtaining the concerned employee’s consent, the CNESST must send all complaints of harassment involving discriminatory conduct to the CDPDJ.

Provisions will come into effect on a date to be determined (subject to the adoption of a regulation)

Better protection of workers hired through personnel placement agencies and recruitment agencies for temporary foreign workers

Agencies required to obtain a licence

Personnel placement agencies

Prohibition on giving an employee a rate of wage that is less than that of other employees of the client enterprise doing the same work in the same establishment due to the employee’s hiring date.

Personnel placement agencies and client enterprises are solidarily liable for pecuniary obligations pursuant to the Act.

Employers of temporary foreign workers

Further obligation to provide information to the CNESST such as the term of the contract and the arrival and departure dates.

In the event of criminal prosecution for violation of the Act by a legal person or its representatives:

A director or officer of the legal person will be presumed to have personally committed the offence, unless proof of due diligence is established.

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Section 1 of the Act; see also the Worst Forms of Child Labour Convention, adopted in Geneva on June 17, 1999, article 3: Link Section 1 of the Act; see also the Forced Labour Convention, adopted in Geneva on June 28, 1930, article 2: Link Section 19 of the Act. Section 20 of the Act.

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Harassment and Violence in the Workplace: An Overview of Recent Legislative Changes Introduced by Bill 42

Introduction In 2020, faced with statistics showing that nearly one in two women and three in ten men believed they had suffered sexual harassment or assault in the workplace,1 the Minister of Labour expressed its intention to help prevent and address this issue. The government began by setting up a committee to examine cases of sexual harassment and assault (the “Committee”). Its mandate was to analyze how such cases are handled in workplaces across the province.2 The Committee made over 82 recommendations in its report titled Mettre fin au harcèlement sexuel dans le cadre du travail : Se donner les moyens d’agir [putting an end to sexual harassment in the workplace by developing the means to act], which was prepared in collaboration with law enforcement agencies and further to consultations with various stakeholders, including community groups, unions and employers , as well as groups of women workers. The government included a number of recommendations from the report into Bill 42.3 This Bill, which is aimed at preventing and fighting psychological harassment and sexual violence in the workplace, was assented to on March 27, 2024. It introduces major amendments to various labour laws, which are likely to change existing practices within organizations. The following is an overview of these amendments and their potential impact. A. Occupational health and safety The Act respecting occupational health and safety was first amended to introduce a definition of what constitutes“sexual violence,” whichcame into force on March 27, 2024, and reads as follows: 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.4 This broad definition could very likely affect existing employer policies and give rise to a host of problems needing to be resolved by the courts to ensure proper application. Action programs and prevention programs [effective October 6, 2025]: When developing an action program (for businesses with 20 workers or less) or a prevention program (for businesses with 20 workers or more), employers will be required to identify and anticipate psychosocial risks and risks related to sexual violence that may affect workers in their establishments.5 B. Industrial accidents and occupational diseases New legal presumptions of employment injury [effective September 27, 2024]: The Bill introduces two new legal presumptions of employment injury to reduce the burden of proof for victims of sexual violence in the following situations: Where injuries and diseases are the result of sexual violence suffered by a worker and perpetrated by the worker’s employer, one of the employer’s executives in the case of a legal person or a worker whose services are used by such employer; and Where a disease occurs within three months after the worker has been the victim of sexual violence. The burden will then be on the employer contesting an injury of this nature to reverse the application of these presumptions. Handling employment injury claims will be even more difficult, as Bill 42 provides that employers will not have access to workers’ medical records prior to hearings before the Administrative Labour Tribunal. Employers prohibited from accessing medical records [effective September 27, 2024]: Bill 42 sets out stricter obligations for health professionals designated by employers. Only the health professional designated by an employer will have access to the medical record in the possession of the Commission des normes, de l’équité, de la santé et de la sécurité du travail concerning the worker’s employment injury.6 It will not be possible for the employer to obtain all information concerning a worker’s medical condition, because the health professional will be required to limit disclosure to only the information needed to provide the employer with a summary of the file and an opinion on how to handle the employment injury claim.7 The prohibition on access to medical records also carries important fines ranging from $1,000 to $5,000 for a natural person and from $2,000 to $10,0008 for a legal person. However, it does not preclude employers from obtaining medical records concerning the employment injury by way of an authorization or subpoena. Extension of time limit for filing a claim [effective September 27, 2024]: The new time limit for filing a claim for an injury or disease resulting from sexual violence is two years.9 In all other cases, the time limit for filing a claim is six months from the occurrence of the injury.10 Cost of benefits imputed to all employers [effective March 27, 2024]: As an exception to the principle that employers must cover the costs associated with employment injuries, where an employment injury is the result of sexual violence suffered by a worker, the Bill provides that the cost of benefits will automatically be imputed to the employers of all the units.11 However, we must bear in mind that the imputation of costs to all units will have repercussions as it will lead to an increase in the cost of compensation regime for all employers. C. Labour standards Bill 42 also introduces a number of amendments to the Act respecting labour standards, including the following. Adjustments to harassment prevention and complaint processing policies [effective September 27, 2024]: Such policies must now include: 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. The specific information and training programs on psychological harassment prevention that are offered to workers and the persons designated by the employer to handle complaints or reports. The recommendations on behaviour to adopt when participating in work-related social activities. The applicable procedures for making complaints or reports to an employer or providing an employer with information or documents; details about the person designated to handle complaints or reports; and information regarding the employer’s obligation to follow up. The measures to protect the persons concerned by a psychological harassment situation and those who cooperated in processing a complaint or report regarding such a situation. The process for managing psychological harassment situations, including the process applicable to inquiries conducted by employers. The measures to keep complaints, reports, information or documents received confidential and, for the documents made or obtained in the course of managing a psychological harassment situation, the measures necessary to retain them for at least two years.12 The policy must form an integral part of the prevention program or action program under the Act respecting occupational health and safety [as of the effective date to be set by the government, which will be no later than October 6, 2025]. Harassment by third-parties [effective September 27, 2024]: Employers are expressly obliged to prevent psychological harassment “from any person.” This includes any third parties they do business with, such as customers, subcontractors and suppliers.13 The passage of time does not clean the slate [effective March 27, 2024]: An amnesty clause contained in a collective agreement will have no effect on disciplinary measures resulting from behaviours relating to physical or psychological violence within the meaning of the law.14 This major amendment is aligned with developments in case law on applying amnesty clauses in psychological harassment situations. Confidentiality of the psychological harassment complaint resolution process [effective September 27, 2024]: Where the parties to a settlement of a psychological harassment complaint do not wish to undertake to keep the agreement confidential, they must expressly agree in writing to waive the confidentiality obligation in the agreement.15 Punitive damages even in cases involving employment injury [effective March 27, 2024]: Where a worker’s psychological harassment complaint is upheld and they have suffered an employment injury resulting from the psychological harassment, they may also be entitled to punitive damages.16 The Administrative Labour Tribunal was previously prohibited from ordering an employer to pay punitive damages to a worker having suffered an employment injury resulting from psychological harassment.17 Expanded prohibition against reprisals [effective March 27, 2024]: In addition to the cases already provided for in the ALS, an employer may not take reprisals against a worker on the ground that the worker has made a report involving psychological harassment or cooperated in the processing of such a report or a complaint.18 Pratical considerations Given the many amendments introduced by Bill 42, all employers should keep abreast of new developments and best practices in preventing and handling harassment and violence in the workplace. In the short term, we recommend that employers: Hire experts to review and update their prevention of harassment and violence in the workplace policies before September 27, 2024. Depending on each situation, retain the services of a health professional who will play a proactive role and liaise with the employer in the handling of an employment injury claim. Explicitly define the terms of the mandate given to such expert in order to pinpoint what information is required to handle the employment injury claim. Schedule training sessions for all staff, including managers and executives. These training sessions should cover not only the aforementioned amendments, but also the procedure for reporting a sexual harassment or violence situation, filing and handling a complaint and making sure the process remains confidential. Inform members of their organization of the new definition and the updated company policy and establish response guidelines for managers who will have to deal with the various situations that can arise. Designate a person who will be in charge of enforcing and applying the harassment prevention and complaint processing policies. Carefully and meticulously document all aspects of inquiries conducted further to sexual violence or sexual harassment situations. Enlist the help of specialists in the field to help them identify and analyze the psychosocial risks and risks related to sexual violence that may affect workers in their establishment. Lastly, as regards handling employment injury claims, despite the fact that employers will no longer have to cover associated costs all on their own, employers may still need to handle claims or contest them in some situations, and they will have the burden of reversing the application of the presumptions benefiting workers. Limited access to medical records means more grey areas and more complex claims management. Given these significant changes, we believe it will be all the more important for employers to turn to qualified experts. When they do so, they should carefully set out the mandate that they wish to entrust to the expert in question to make sure that the opinion they obtain is detailed enough to adequately manage the employment injury claim. The terms of the mandate will need be drafted such that the expert understands whether the information requested is relevant for the employer to properly handle the claim. Our team is available to help you assess the impact that these many changes may have on your business. Statistics Canada, “Gender Results Framework: A new data table on workplace harassment,” released on February 12, 2024, online: The Daily — Gender Results Framework: New and updated data tables (statcan.gc.ca). This initiative was prompted by recommendation 138 of the report titled Rebâtir la confiance : Rapport du comité d’experts sur l'accompagnement des victimes d’agressions sexuelles et de violence conjugale [rebuilding trust: report from the committee of experts on support for victims of sexual assault and domestic violence], released in 2020. An Act to prevent and fight psychological harassment and sexual violence in the workplace, Bill42 (assented to on March 21, 2024), 1st Sess., 43rd Legis. (Qc) (hereinafter “B. 42”). The Bill’s provisions will gradually align with other legislative changes introduced by other recent bills, such as An Act to modernize the occupational health and safety system[3] and An Act respecting the regulation of work by children. Section 33, B. 42; section 1, Act respecting occupational health and safety (“AOHS”). Sections 35 and 36, B. 42; sections 59 and 61.2, AOHS. Section 5, B. 42; section 38, Act respecting industrial accidents and occupational diseases (“AIAOD”). Section 7, B. 42; section 39, AIAOD. Section 16, B. 42; section 458.1, AIAOD. Section 16, B. 42; section 271 and 272, AIAOD. Section 10, B. 42; section 271, AIAOD. Section 12, B. 42; section 327, AIAOD. Section 18, B. 42; section 81.19 Act respecting labour standards (“ALS”). Section 18, B. 42; section 81.19, ALS. Section 20, B. 42; section 97.1, ALS. Section 25, B. 42; section 123.17, ALS. Section 24, B. 42; section 123.15(4.1), ALS. s. 123.15(4) and 123.16, ALS. Section 21, B. 42; section 122(2.1), ALS.

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