Nine months later - The impact of COVID-19 on the employer’s obligations regarding occupational health and safety

Approximately nine months ago, the Québec government declared a state of health emergency throughout the province due to the spread of the COVID-19 pandemic. Since then, employers have had to deal with an overwhelming number of rules, restrictions and directives concerning, among other things, the continuation or interruption of their business, the exercise of their managerial rights and health and safety rules in their workplace. In recent months, employers’ decisions have been the subject of complaints, prosecutions and objections from employees, unions and the CNESST. This blog post provides a brief overview of recent decisions in which the employer’s action or inaction in a workplace health and safety context was at issue.

  • Penal proceedings against an employer for breaches of its obligations under section 51(5) of an Act respecting Occupational Health and Safety

CNESST v. 8653631 Canada Inc., 2020 QCCQ 6684

In May 2020, an inspector from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) visited the construction site of the principal contractor 8653631 Canada Inc. (the "Principal Contractor") to verify that it was in compliance with an Act respecting Occupational Health and Safety (AOHS). As part of his inspection, the inspector noted that several directives from the Institut national de santé publique du Québec (INSPQ) concerning measures to protect workers from COVID-19 were not followed. For example:

  • the common areas, such as the dining room and washrooms, were not disinfected twice a shift;

  • waste was found in the wastewater used for hand washing;

  • the water from the garbage was emptied only twice a shift;

  • there were no garbage bins nearby to contain the soiled hand paper;

  • in common areas, the door handles used were not disinfected twice per shift;

  • neither the Principal Contractor nor a specialized company disinfected the common areas;

  • the questionnaires on the health status of workers were completed, but no one analyzed them;

  • there was no control over the cleaning of workers' hands at the entrance and exit of the construction site.

In this specific context, the inspector determined that the deficiencies were such that they posed a danger to the health, safety or physical integrity of the workers and ordered the closure of the work site under its powers under section 186 of the AOHS[1]. The inspector himself noticed these deficiencies and took photos during his inspection. The inspector also issued a statement of offence under section 236 of the AOHS, accusing the Principal Contractor of failing to comply with its obligations under section 51(5) of the AOHS, to "use methods and techniques intended for the identification, control and elimination of risks to the safety or health of the worker."

The dispute before the Court of Québec was related to the issuance of the statement of offence for non-compliance with section 51(5) of the AOHS. The issue was whether an employer that contravenes the INSPQ’s recommendations by exposing its workers to a risk of contamination with COVID-19 violates section 51(5) of the AOHS.

The Court of Québec summarized the role and mandate of the INSPQ and the measures it recommended on construction sites. The Court  concluded that the Principal Contractor had failed to comply with the INSPQ’s health directives and that "failure to apply the measures to control the risk of exposure to COVID-19 constitutes a contravention of section 51(5) of the Act." (our translation) The Court also pointed out that the OHSA must "receive a broad and liberal interpretation, even in penal matters, in order to achieve its objective, which is the "the elimination, at the source, of dangers to the health, safety and physical well-being of workers".” It further noted  that compliance with the regulations alone is not sufficient in this context, that an employer must respect best practices to eliminate the danger at source, and that under section 51(5), it must also "respect standards, common sense and best practices in order to identify, control and eliminate the risk of exposure to COVID-19" (our translation). The Court concluded by explaining that, in its opinion, best practices in this area were established by the INSPQ and that, at the time of the pandemic (i.e. in May 2020), "common sense required following the recommendations issued by public health specialists to prevent the spread of COVID-19 and reduce the risk of exposure of construction workers” (our translation). It added that the INSPQ’s recommendations were not excessive and did not require costly or abusive measures. As a result, they became imperative in this context.

The Court therefore found the Principal Contractor guilty of the alleged offence and fined it $1,754 plus applicable fees.

  • Requests for a provisional interlocutory injunction and safeguard orders to force an employer to provide PPE and reorganize the organization of the work

Fédération interprofessionnelle de la santé du Québec - Syndicat des professionnels en soins de l’Outaouais (FIQ-SPSO) v. CISSSO, 2020 QCCS 2618

On August 18, 2020, the Union asked the Superior Court to issue a provisional interlocutory injunction to compel the employer, a CHSLD, to provide and make available certain personal protective equipment to the employees concerned and to modify the organization of the work. However, the history between the parties showed that the Union had already filed several complaints and challenges with the Administrative Labour Tribunal (ALT), in particular to obtain the issuance of a safeguard order pursuant to section 9 of an Act to establish the Administrative Tribunal. A hearing date had been diligently set by the ALT on September 16, 2020, and it was not disputed that this application would proceed on that date, unless the applications for dismissal filed by the employers in question were allowed.

The Superior Court had to decide whether, given the appeal before the ALT, it should hear the provisional interlocutory injunction application. Finding that the request for a safeguard order presented before the ALT pursued essentially the same objective as the injunction filed before it, the Superior Court was of the opinion that "the application under study has the effect to some extent of short-circuiting a process already initiated before the Specialized Tribunal." (our translation)  It reiterated that the case required an analysis of factual elements that the legislator wanted to entrust to specialized tribunals and, in these circumstances, determined that it should not intervene since, in particular, it did not find any deficiencies in the administrative process and found that the ALT was proceeding expeditiously and diligently. The Superior Court therefore rejected the Union’s request.

PSSU-FIQP and CHSLD Vigi Reine-Élizabeth, 2020 QCTAT 3362

Several unions representing nursing staff, including the Union in the previous decision, filed challenges to various intervention reports issued by the CNESST. As part of these challenges, the unions filed applications for safeguard orders aimed at forcing their respective employers, CHSLDs and CISSS, to, in particular, provide certain personal protective equipment (respiratory protective equipment, including N95 mask, shoe covers and dual eye protection) and implement measures related to the organization of the work. On the other hand, the employers filed a motion for summary dismissal of these safeguard orders on the grounds that they were abusive and dilatory remedies and that, on their own, the remedies were doomed to fail, particularly at the stages of urgency and the colour of a right.

The ALT partially granted the motion for summary dismissal of the motions for safeguard orders since, according to it, these interlocutory applications were doomed to fail and because of the interests of justice which required that a debate on the merits be heard quickly.

With respect to the injunction, the ALT concluded that the unions had not demonstrated a colour of  right to obtain the requested equipment. It stated the following regarding the issue of masks:

[31] On the one hand, there is currently no apparent right to the obligation to provide respiratory protection equipment, including N95 masks, for contexts other than medical interventions that generate aerosols. Of course, the Union has filed many documents showing that health and protection standards have evolved over the years, even over the months. However, scientific developments or changes in health directives by public authorities do not mean that there is a right to obtain specific individual protective equipment or a particular measure in terms of the organization of the work. In this context, there is therefore no apparent right. (our translation)

In addition, the ALT pointed out that the applications for safeguard orders are in conflict with the order of June 8, 2020, entitled "Order of the National Director of Public Health concerning the wearing of respiratory and eye protection equipment" which provides that the use of N95 masks is reserved for medical interventions that generate aerosols. The ALT added that the unions were asking the court to take into account the public order nature of the AOHS and of the charters and that the unions argue that these should take precedence over the order of the National Director of Public Health. According to the ALT, such an analysis involves the prioritization of occupational health and safety standards, an exercise that should be the subject of a hearing on the merits and that should not be decided at the stage of a safeguard order. The ALT also does a jurisprudential review of similar recent decisions rendered by the ALT or the Superior Court.

The unions also requested access to employers’ workplaces and documents relating to the various ventilation systems - these requests were not summarily rejected and, instead, were deferred to the case management conference convened by the ALT to prepare for the hearing on the merits.

  • Application for a safeguard order to force an employer to allow teleworking

Syndicat des fonctionnaires municipaux de Québec v. Ville de Québec, 2020 CanLII 79699 (QC SAT)

In this case, the grievance arbitrator Jean-François La Forge was seized with an application for a safeguard order filed by the Union to force the City of Québec to allow its employees to work remotely, and thus to "promote telework" in accordance with the most recent ministerial orders. The application was based on the Order in Council of June 25, 2020 (No. 689-2020), which provided the following: 

"THAT, when work can be rendered remotely, teleworking from a principal residence or from what is in place is preferred."

This request was in response to the National Capital region’s transition into an orange zone and the fact that some employees of the city had to report to work physically.

To grant the safeguard application, arbitrator La Forge had to examine the criteria required for issuing such an order, namely, the appearance of right, irreparable harm, the balance of convenience and urgency. With respect to the appearance of right, the arbitrator questioned whether, by requiring that certain members of the Union provide in-person work performance, the City was exercising its management rights in accordance with its occupational health and safety obligations and  recent governmental orders.

Arbitrator La Forge ultimately rejected the request for a safeguard order mainly because the Union did not demonstrate an appearance of right. Moreover, a decision at this stage would result in a decision that would decide the merits of the dispute, which is not appropriate at the stage of an application for an injunction.

In particular,  arbitrator La Forge pointed out that the decrees do not modify collective agreements and do not limit the employers’ management rights. If this had been the legislative intention, the decrees would have been more specific and directive and would have clarified the limits imposed on the employers’ management rights or delineated the limits of their exercise. Furthermore, the arbitrator found that Decree No 689-2020 does not force a complete closure of the activities carried out by the City, unlike other economic sectors. For  arbitrator La Forge, the use of the expression "privilege" confers on the employer "a latitude that conflicts with the expeditious nature of a request for a safeguard order" (our translation). The arbitrator also noted that the appropriate vehicle to challenge the exercise of the managerial right is not the issuance of a safeguard order, but the filing of a grievance:

"In this sense, the decree does not change management rights or the obligation of its employees to provide the work, and the former is still bound by the same obligations. The employer therefore retains its managerial rights when it is time to "prioritize" teleworking. Its exercise thereof may well be the subject of a grievance without necessarily giving rise to a safeguard order." (our translation)

Finally, the arbitrator found that the City seems to be in compliance with the decrees, since it allowed approximately 1,500 employees to work remotely. He concludes by explaining that a fear of contamination is not enough to justify the issuance of a safeguard order :

"The fear, even reasonable, related to Covid-19 remains a subjective fear and cannot justify a refusal to work, a refusal to report to work or the issuance of a safeguard order. All the health measures put in place are to ensure a safe work environment despite the pandemic. Nor would it be to the employer’s advantage to see one of its workplaces become a place of outbreak." (our translation)

Conclusion

It appears that the courts base much of their analysis on the INSPQ’s directives and on the wording of government orders and decrees. It should be recalled that the employer has a general obligation to take the necessary measures to protect the health and ensure the safety and physical integrity of its workers. However, the choice of measures to be adopted is up to the employer, provided they are sufficient to ensure adequate protection for workers. Consequently, an employer acting within the framework of the INSPQ’s recommendations will presumably comply with its general occupational health and safety obligations, even if the measures chosen are not those requested by the employees or the union. On the other hand, those who completely ignore  the INSPQ’s recommendations risk having their establishments closed, in whole or in part, and being subject to penal complaints.

For more information on employment-related issues arising from COVID-19, please visit our COVID-19 Recovery Hub and our McCarthy Tétrault Employer Advisor Blog. Additionally, if you are an employer and have questions about this blog or otherwise need assistance, please reach out to any member of our National Labour & Employment Team.

 

[1] This closure does not appear to have been contested.

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