Since the adoption of Bill 59 on September 30, 2021, the Act respecting Occupational Health and Safety (the “Act”) provides, in section 51(16), that employers must “take the measures to ensure the protection of a worker exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace”. The Act further requires an employer to take protective measures when it knows or ought reasonably to know that a worker is exposed to spousal or family violence.

The Act provides little guidance on the positive obligations of an employer and the concrete actions that employers must take to ensure the protection of employees. We note, however, that section 5.1 of the Act provides that, unless otherwise specified, the provisions of the Act “apply to a worker carrying on telework and to his employer”, such that the obligations of employers in this regard may extend to remote work employees.

THE CNESST’s position

The Commission des normes, de l'équité, de la santé et de la sécurité du travail (the “CNESST”), published its own guidance on the practical obligations of employers under section 51(16) of the Act. According to the CNESST, employers should adopt various measures to prevent, recognize and address spousal, family or sexual violence in their workplaces.

In terms of prevention, the CNESST recommends, among other things, that employers:

• Be alert to signs that may indicate that an employee is victim of violence, including physical signs, significant changes in an employee’s behavior, desire to work overtime hours, and abnormal work interruptions for personal reasons;
• Inform and educate existing and new employees on physical or psychological violence, and organize awareness activities;
• Identify a resource person in the company responsible for managing reports of violence, as well as signs and manifestations of same;
• Develop an internal policy on violence, including the procedure to follow in case of a report or event; and
• Implement measures aimed at reducing the risk of physical violence, such as physical barriers at strategic locations, a panic button connected to the police and safety cameras.

When an employee is a victim of violence and conditional on the employee’s prior consent, the CNESST recommends that the employer develop an individual safety plan adapted to the specific situation of the victim. This safety plan should provide for all the measures taken by the employer to ensure the victim’s safety, which may include a change of professional phone number, a relocation of the workstation, a plan to control comings and goings in the workplace and an undertaking by the employer to apply an injunction rendered by the court.

Case law

Quebec case law has not yet provided much insight on the interpretation to be given to this new provision of the Act. That being said, on December 2, 2022, in Trivium Avocats inc. v. Rochon, 2022 QCCS 4628, the Superior Court confirmed that an employer had a duty to intervene to protect a female employee in the workplace from her violent and threatening son, and that the employer had the required interest to act to seek a protection order for the employee. Since the evidence demonstrated the existence of a high-intensity domestic violence dynamic which expressed itself in the workplace, the Superior Court considered that the employer’s fears were based on reasonable grounds and therefore issued the protection order requested by the employer.

Furthermore, in a decision rendered on February 3, 2023 (9249-8427 Québec inc. v. Babin, 2023 QCTAL 3278), the Tribunal administratif du logement recognized that the landlord of a building, as an employer, had a duty to protect its employees under section 51(16) of the Act, and therefore, that the employer could not tolerate its employees being verbally assaulted and threatened by a tenant of the building. Based in part on its assessment of the landlord’s obligations as an employer, the Tribunal concluded that the landlord/employer was justified in resiliating the lease and ordering the eviction of the violent tenant.

Parameters which remain unclear

It is important to note that, despite the obligation imposed upon an employer to protect its employees from violence, an employer is not required to replace or act as a specialized intervenor for its employees. Moreover, the CNESST recognizes that an employer cannot require an alleged victim to denounce a situation or to confirm whether they are a victim of domestic violence. Furthermore, considering that information related to a situation of violence is confidential, the CNESST recognizes that an employer is required to obtain the consent of an employee victim of violence if it wishes to communicate information concerning the employee to a specialized assistance resource or if it wishes to implement an individual safety plan for that employee, unless there is reasonable cause for the employer to believe that the employee is at serious risk of death or serious injury.

Moving forward, Quebec courts will be called upon to clarify the specific guidelines and parameters of the obligation of employers to protect their employees against violence. One of the main issues remains the harmonization of the employer’s obligations in this matter with the fundamental rights of employees, particularly with respect to their privacy, and especially in a context where the obligation to protect could apply both to employees working physically on the employer’s premises as well as to those carrying on telework.