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Quebec’s new workplace safety law is raising a number of questions.
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Published Jul 23, 2023 • Last updated 57 minutes ago • 5 minute read
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Even when a person is working remotely, their employer still has a legal obligation to make sure they are healthy and safe — including from conjugal violence or harassment.
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The massive rise in remote work during the pandemic prompted Quebec to adjust its law on the health and safety of workers in 2021 to include the fact that its provisions “apply to workers who are doing remote work and their employers.”
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At the same time, lawmakers saw an obligation to follow through on that logic by adding Article 51.16, under which the employer must “take measures to assure the protection of the worker exposed in their workspace to a situation of physical or psychological violence, including conjugal or sexual violence.”
Questions, but little jurisprudence
“It’s pretty innovative,” says Marie-Hélène Jolicoeur, a partner at Lavery specializing in labour law.
But, she adds, “we have little jurisprudence and many questions from employers: ‘What can I do? I’m not a psychosocial worker, and with remote work, if the person is at home, what do I do? I have no control over their workspace.’”
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It’s a delicate and complicated situation that raises a number of other questions, but Jolicoeur says the law is clear: “The employer has an obligation of means. They have to take measures to prevent risks to the health and safety of the worker, so their principal responsibility is to act in prevention.”
Means of prevention don’t differ that much from what should already exist in businesses, starting with the most basic, which is a policy that includes a process for raising concerns. The employer must make sure that the policy is distributed, accessible and accompanied by awareness measures, training and human resources.
‘We must act’
“If we’re talking about psychological, sexual or other forms of harassment, it’s clear that control is more difficult when the person is working remotely,” Jolicoeur says, but that does not detract from the employer’s obligations.
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“When a situation is brought to their attention, they have to take action to make the harassment stop. We have to take steps to make it stop if something is brought to our attention and we have to act if we know — if we are aware of or should be aware — that a person is a victim of conjugal violence, for instance.”
At one end of the spectrum, if there’s an urgent situation and the employer is aware of it, “that’s obviously a call to the police.”
In more subtle situations, where there are suspicions, performance issues or the person confides, the employer has to explore supportive measures, like “seeing if they can permit a person who is a victim of conjugal violence to return to the office, to take measures to accommodate them or refer them to good resources.”
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“There are partnerships that are possible with shelters, where there are emergency hotlines, where people can intervene or where there can be meetings,” Jolicoeur explains.
Recourse against the employer?
But how far does this responsibility go? Does a victim of conjugal violence while teleworking have recourse against their employer for not intervening?
“We are really building the law in this regard,” Jolicoeur says. “But it’s clear that if ever an employer knew and had to act, there could be recourse for psychological harassment, for instance. There could be moral damages awarded and reimbursements for the cost of psychological consultations.
“There could also be a claim for a work accident. ‘I was at work, I was the victim of harassment’ — that can be someone at home, a third party. In a workplace, it can be a supplier, it can be a third party,” she adds, by way of an illustration that there’s no difference in the eyes of the law between a victim in an office or one working remotely.
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Indeed, the potential recourse goes beyond the occupational health and safety act. Jolicoeur notes that a claim of psychological injury in the workplace could also invoke the Loi sur les normes du travail.
Even before the pandemic, the employer’s liability was not limited to the workspace, since they could be held liable in situations such as Christmas parties or corporate events. Jolicoeur adds that the same logic applies if a person is a victim of harassment by text from a colleague outside of office hours.
At home outside of work hours
Where things get tricky is when a person is experiencing conjugal or sexual violence or harassment outside of work hours, but not from a colleague — for instance, when an abusive partner returns home at night.
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“The limit on what an employer can do is to try to act and to see what they can do to encourage a safe workspace. The employer can say, ‘I tried, I gave them resources, I tried to give them a safe and secure workspace,’” Jolicoeur says.
“The jurisprudence is still being developed, but it would be reasonable for an employer to support this argument by saying, ‘As an employer I took action, but at a certain point there are elements on which I cannot act. You cannot stop a worker from returning home to see their partner.’”
However, Jolicoeur notes that “if the person reports, you cannot not act. The employer has a certain obligation. They can’t demonstrate that this happened while they were at work, but they know the person could be subjected to violence, so there’s a risk. Therefore, they’ll have to act.”
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Social responsibility
Behind the text of the law, Jolicoeur notes, is the spirit of the law.
“The legislator established a certain social responsibility for psychological harassment, sexual harassment — but also conjugal and sexual violence,” she says.
“But I admit that this is new, and that the question it raises is: How far can we go? We can’t just say, ‘It’s their private life.’ We can’t say that anymore. It’s a message of social responsibility that the law is sending.”
It remains to be seen how courts, which have already moved to protect victims of conjugal and social violence in criminal cases, will interpret the law. In employment law, the jurisprudence is not yet settled.
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