The Act to modernize the occupational health and safety regime[1] (“Act C-27”), amending, among other things, the Act respecting industrial accidents and occupational diseases[2] (“AIAOD”), is assented to on October 6, 2021. The purpose of these amendments is to reduce occupational injury in the workplace, to simplify access to the compensation plan in the event of an occupational injury, to provide greater support to workers who have suffered an occupational injury and to their employers, and to improve certain administrative procedures.
These changes are being phased in as of October 6, 2021, and will continue until October 6, 2025. On October 6, 2022, a series of measures under Bill C-27 will come into force.
Here is an overview of the main changes that will have an impact on employers and that will take effect on October 6, 2022.
1. The Temporary Assignment Procedure
a. CNESST Forms
From now on, the employer of a worker who has suffered an employment injury must use forms mandated by the CNESST for temporary assignment. The worker’s attending physician must indicate the worker’s temporary functional limitations and approve the proposed assignment in this form in order for the employer to proceed with the worker’s temporary assignment. Whether the treating physician authorizes the temporary assignment or not, the employer will be required to forward this temporary assignment form to the CNESST.
Prior to October 6, 2022, the employer had the option of using an “in-house” form to propose a temporary assignment and the worker’s attending physician’s assessment could be recorded on the form. In addition, the worker’s treating physician was not required to identify the worker’s temporary functional limitations as part of the temporary assignment process, but only to certify that the worker was reasonably able to perform the proposed temporary assignment. The worker’s physician also has to confirm that the proposed temporary assignment did not pose a danger to the worker’s health, safety, and physical integrity, and was conducive to the worker’s rehabilitation.
b. Wage Payments Terms and Conditions
Effective as of October 6, 2022, an employer who offers a worker a temporary assignment involving fewer hours than the worker’s regular position must indicate on the temporary assignment form which of the following two options the employer chooses:
- Pay the worker 100% of his or her pre-injury wages and benefits. CNESST will reimburse the amount paid for the hours not worked. The maximum amount CNESST will reimburse is equivalent to the income replacement benefit to which the worker would have been entitled without the assignment. If the employer chooses this option, the employer must declare the worker’s hours within 90 days of the end of the pay period to CNESST in order to be reimbursed.
- Pay the worker only for the hours worked. The CNESST will pay the worker the difference between the maximum amount of income replacement indemnity entitled without the temporary assignment and the employer’s paid wages.
The employer is allowed to change their choice for each temporary assignment only once.
It is important to note that employers with workers on temporary assignment as of October 6, 2022 will have to inform the CNESST of their choice within 90 days of this date.
Prior to these amendments, the AIAOD did not provide for any specific terms and conditions regarding workers on temporary assignment’s wage payments.
2. The Medical Assessment Procedure
From now on, members of the Bureau d’évaluation médicale (the Medical Evaluation Board “MEB”) will have to decide on the injury consolidation date. They will also have to determine the existence and the permanent impairment percentage to the worker’s physical and psychological integrity and on the existence of functional limitations when such impairment and limitations have not been determined. MEB members will not have to give an assessment on such matters if medical reasons prevent them from doing so. Such reasons will be established by the MEB member when necessary.
In addition, as of October 6, 2022, the AIAOD explicitly stipulates that MEB members may rule on the consolidation date if they are of the opinion that the injury no longer requires care and treatment. MEB members already possess a certain discretionary power in this regard: they could rule on certain medical matters on which the worker’s attending physician, the employer’s designated expert or the CNESST has not ruled “if he or she deemed it appropriate”[3].
3. The Right to Return to Work and the Duty to Accommodate
Since the Supreme Court rendered the Caron[4] decision in 2018, it has been accepted that the employer, in the context of implementing the rehabilitation process provided for in the AIAOD, has a duty to reasonably accommodate its workers in accordance to the Charter of Human Rights and Freedoms[5], even after the latter’s right to return to work has expired.
As of October 6, 2022, the AIAOD will provide a more detailed policies for this reasonable accommodation procedure by granting more powers to the CNESST in this regard. Among other things, the CNESST will benefit from greater powers in the process of determining suitable employment, regardless of the worker’s right to return to work deadline expiration. Whereas previously the CNESST asked the employer if suitable employment was available, the CNESST will now be able to determine suitable employment and the accommodation measures to be put in place, with the cooperation of the employer and the worker, subject to the employer’s proof of undue hardship.
Furthermore, as of October 6, 2022, the CNESST will have the power to impose an administrative monetary penalty on the employer in the event of the latter’s failure to comply with this process. This penalty is equivalent to the worker’s lost of entitled benefits during the period of the employer’s default. However, this monetary penalty shall not exceed the worker’s authorized annual income replacement benefit amount.
4. Rehabilitation Measures
Until now, the AIAOD did not provide for the implementation of rehabilitation measures by the CNESST for workers whose employment injury had not yet consolidated. Under the AIAOD, such rehabilitation measures could only be granted by the CNESST once the injury has consolidated.
As of October 6, 2022, the CNESST will be able to grant the worker rehabilitation measures to support his or her return to work even before the employment injury has consolidated. However, the objective of these measures must be to encourage a gradual return to work.
Henceforth, the CNESST may also, before the consolidation of the worker’s employment injury, grant them rehabilitation measures for a purpose other than promoting their return to work. These rehabilitation measures must also be submitted to the worker’s attending physician for approval if they have an effect on the worker’s health.
Lastly, the rehabilitation measures granted to the worker by the CNESST before the worker’s injury recovery may be maintained beyond the injury consolidation date.
[1] Formerly Bill 59
[2] RLRQ, c. A-3.001
[3] For more details, please refer to the second paragraph of section 221 of the AIAOD in force until October 5, 2022.
[4] Québec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) c. Caron, 2018 CSC 3
[5] RLRQ, c.
