temporary assignment form cnesst

Québec Employers: The Rules for Injured Workers’ Temporary Assignment and Workplace Reintegration Have Changed

On October 6, 2021, the Act to modernize the occupational health and safety regime took effect. As indicated in the act’s title, its purpose was to modernize Québec’s occupational health and safety regime with regard to the prevention and compensation of employment injuries.

The act primarily amended the Act respecting industrial accidents and occupational diseases (ARIAOD) with various changes to take effect gradually between 2021 and 2024.

On October 6, 2022, the latest changes came into force. These will notably require employers to change certain internal procedures and consider new employee rights when it comes to the temporary assignment of work and accommodation of functional limitations. This article focuses on these particular changes from a practical standpoint.

Temporary Assignment Forms

Employers must now use the Commission des normes, de l’équité, de la santé et de la sécurité du travail’s (CNESST) temporary assignment of work form whenever they wish to invite an injured employee’s physician to allow his or her patient’s return to work on modified duties until such a time as the employee is capable of returning to regular duties. Before this amendment, there was a proposed form, but its use was not mandatory.

The devil here for employers lies not in this requirement, but in the details of the form itself, which the CNESST has amended from one page to three pages. It is to be noted that the contents of the form itself are not dictated by the legislative amendment. It is therefore administratively dictated by the CNESST. Under this new form, employers are now limited to proposing only two assignments, while under previous rules there was no limitation as to how many proposals could be made, therefore making it more difficult for a treating physician to refuse a worker’s temporary assignment. Under the new form, however, the physician will have to specify the worker’s functional limitations, and, should the physician refuse a proposal, the reasons for the refusal must be stated in relation to the limitations. Regardless of whether an assignment is accepted, the employer must forward the form to the CNESST.

Rehabilitation Measures

Prior to October 6, 2022, the CNESST could not technically provide rehabilitation measures to an injured employee prior to the employment injury’s being “consolidated” (i.e., hitting a healing plateau) and a permanent impairment being established. Practically speaking, however, it would initiate rehabilitation discussions with the employer as soon as the consequences of the injury were foreseeable and rehabilitation measures were sure to be required.

An amendment has now made this practice official. The CNESST may now provide rehabilitation measures as soon as a worker’s compensation claim is accepted.

Duty to Accommodate

Under the ARIAOD, employees typically have a specific window of time during which they are allowed to return to work following a workplace accident. Nevertheless, the employer’s duty to accommodate the individual has always gone beyond the “right to return to work” period.

New amendments to the right to return to work now enhance employees’ accommodation protection by facilitating their reinstatement to the workplace, be it in their own jobs or in equivalent employment or suitable employment. In essence, the CNESST now has greater powers to assess whether rehabilitation measures may enable a worker to return to his or her position or to an equivalent position. Moreover, the CNESST can now assess the need for a reasonable accommodation in order to reinstate the worker to the employer’s workplace (such as by adjusting tasks or modifying work schedules). The determination of whether a reasonable accommodation is necessary and available to enable the worker to hold a suitable position available with the employer now rests solely with the CNESST, which can issue a binding decision accordingly. Employers retain the right to challenge a CNESST assessment by showing that it would cause them undue hardship.

This amendment, in essence, is in response to a Supreme Court of Canada decision issued in 2018 that clarified the CNESST’s powers with respect to enforcing accommodation obligations. In the past, the CNESST would rely on the employer’s own assessment of whether it could accommodate a worker through the offer of a suitable employment and would rarely, if ever, challenge an employer’s negative determination.

Finally, as an added incentive for employers to cooperate, should an employer fail to cooperate in the return-to-work process, the CNESST may issue an administrative monetary penalty equivalent to the income replacement benefit to which the worker would have been entitled during the period that the employer was in default. The penalty can go up to one year’s worth of income replacement benefits.

Implications for Employers

Employers may want to ensure that their internal teams responsible for managing workers’ compensation claims are now using the CNESST-mandated form for all temporary assignment offers in order to avoid seeing their proposals declared void and not binding by the CNESST. This could occur if a worker failed to show up for a temporary assignment and the employer requested that its income replacement indemnities be suspended under section 142 of the ARIAOD. Again, those forms, once completed, are to be forwarded to the CNESST.

Further, employers may want to pay close attention to their new obligations regarding the duty to accommodate. While this duty goes beyond the strict legal scope of the ARIAOD, any employer behavior that is determined by the CNESST to be uncooperative could lead to penalties.

Lucie Guimond

Ryan Martin

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Presentation of the new CNESST temporary assignment form

As announced by the CNESST, since October 6, new changes to the law on industrial accidents and occupational diseases are in effect. A new temporary assignment form is now mandatory.

What does this mean for your organization?

As of this date, only the CNESST form will be authorized. It will therefore no longer be possible to use your own forms and/or related task lists.

>>Download the new form

>> Watch the video explaining the new form

As a result, it will now be possible to suggest only two types of positions, including a series of tasks per form (Sections C and D). As provided for in the form, the attending physician will proceed by order of the suggestion of tasks, which means that if the first suggestion of temporary assignment is authorized (Section C), he will not rule on the second suggestion.

The physician will have to complete this form at each medical visit and decide on the temporary functional limitations (Section G). Once completed, it will be the employer’s responsibility to send a copy to the CNESST whether he is authorized.

A new section is also included in this form, namely the choice of salary payment to the worker (Section E). If the worker keeps the same number of hours worked as usual when the temporary assignment is set up, you will simply have to check “yes” in this section.

If, however, it is a temporary reduced time assignment, you will have to choose between the following two options:

• Option 1 You continue to pay the worker his normal salary and maintain the benefits associated with his employment. It will still be possible to make a request to the CNESST to be reimbursed for the hours not worked, but paid. However, if a request for reimbursement is made, it should be noted that the portion reimbursed by the CNESST will be charged to the file, which will result in an increase in the costs paid and will impact your future contributions.
• Option 2 You pay the worker only for the hours for which he/she performs the temporary assignment and the CNESST compensates for the difference. It should be noted that the difference assumed by the CNESST will be charged to the file, which will result in an increase in the costs paid and will impact your future contributions.

In order to prevent the CNESST from paying income replacement benefits (IRR) and having them affect your contributions, and given that you are members of a prevention mutual group, you must ensure that a worker on temporary assignment receives at least the equivalent of the minimum insurable salary, or 90% of his or her net salary, if the worker receives an annual salary that is higher than the minimum insurable salary established by the Commission. We therefore recommend that you choose option 1, without making a claim. Indeed, the addition of amounts to your employer file will affect your performance and your CNESST contributions.

Do not hesitate to contact our team for assistance in managing your OHS claims!

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Amendments to the occupational health and safety regime coming into force this fall

Canada |  Publication |  October 6, 2022

Almost a year ago, on October 6, 2021, the Act to modernize the occupational health and safety regime received assent.

Some of the many changes imposed by this legislation will come into effect on October 6, 2022, one year after its assent.

As a result, we have identified the following key changes to which employers should pay particular attention this fall.

Temporary assignment of work

The employer of a worker who has suffered an employment injury must now use the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the CNESST) form for purposes of a temporary assignment.

A temporary assignment is authorized if the health professional in charge of the worker believes that:

• the worker is reasonably able to perform this work;
• this work does not involve any danger to the worker’s health, safety and physical and psychological integrity given its injury;
• this work is beneficial to the rehabilitation of the employee.

The employer must receive a favourable opinion from the health professional in charge of the worker in order to move forward with the temporary assignment. It should also be noted that the employer is required to submit the form to the CNESST even if the health professional's opinion regarding the proposed assignment is not favourable. Refusal of a temporary assignment cannot always be contested by the employer.

The health professional in charge shall now indicate on the form their findings regarding the worker’s temporary  physical or psychological functional limitations .

In addition, when an employer offers a worker a temporary assignment that involves fewer hours than the worker's regular job, the employer must then indicate on the temporary assignment form the option the employer is choosing for the payment of wages and must notify the CNESST thereof before the temporary assignment begins.

In this regard, two options are available to the employer:

• It should be noted that, in this case, the employer has 90 days after the end of each pay period to apply to the CNESST for reimbursement of the net salary paid for the hours paid but not worked, up to the maximum amount of the income replacement indemnity to which the worker would have been entitled but for this assignment.
• Otherwise, the employer may pay the worker the same wages and benefits, but only for the hours worked. The CNESST will then pay the worker an amount corresponding to the income replacement indemnity to make up the difference between the amount of the income replacement indemnity to which the worker would have been entitled but for this assignment, and the net salary paid to them by the employer for this work.

The option selected can be changed only once for the same temporary assignment.

Rehabilitation before consolidation of the injury

Although in practice rehabilitation prior to consolidation already existed, it is now expressly provided for in the Act respecting industrial accidents and occupational diseases (the AIAOD).

In this regard, when the claim is accepted, the CNESST may grant the worker rehabilitation measures adapted to their state of health in order to favour their return to work, before the consolidation of their employment injury.

The purpose of these measures is, among other things, to allow the worker to develop the ability to gradually return to their duties. Terms and conditions are set out in the legislation for the payment of wages by the employer during this period. Before granting or implementing a rehabilitation measure prior to consolidation, the CNESST must submit the measure to the health professional in charge of the worker, unless the measure has no effect on the worker's state of health.

When the CNESST considers, before consolidation, that the worker could be entitled to a personal rehabilitation program due to the nature of their injury, it may grant the worker rehabilitation measures for a purpose other than to favour the worker’s vocational reintegration. Once again, the CNESST must submit these measures to the health professional in charge.

Rehabilitation after consolidation of the injury

A worker who, as a result of an employment injury, suffers permanent physical or psychological impairment, is entitled to the rehabilitation required by their condition in view of their social and professional reintegration. To this end, the CNESST may, among other things, use means to provide the worker with a home, a vehicle or recreational equipment adapted to their condition.

The legislation now provides that, when required by the CNESST in the preparation and implementation of the personal rehabilitation program, the employer must cooperate.

In addition, if it deems it necessary, the CNESST may authorize a gradual return to work, with the employer, for the worker who may or may not still have a permanent impairment, in order to facilitate their professional reintegration. If this is the case, the CNESST grants financial support to the employer for a maximum period of eight weeks. Once again, terms and conditions are set out in the legislation for the payment of wages by the employer during this period.

It should be noted that measures relating to physical rehabilitation will be included in Chapter V of the AIAOD, which is dedicated to health services. Also, social rehabilitation measures will be determined by regulation at a later date, which is not yet the case as of the present date.

Income replacement indemnity

Henceforth, a worker who suffers an employment injury while at least 60 years of age is entitled to full income replacement indemnity until age 65 when:

• unable to perform their job with the employer;
• the employer does not have suitable employment to offer them.

This allowance will then be gradually reduced until the age of 68.

Right to return to work

The worker absent from work due to an occupational injury:

• continues to accumulate seniority within the meaning of the applicable collective agreement, if any, and continuous service within the meaning of that agreement or of the Act respecting labour standards;
• continues to participate in the institution's pension and insurance plans, provided they pay their share of the contributions due and the employer pays its share.

As of October 6, 2022, these parameters apply until a decision by the CNESST provides for the reinstatement of the worker with their employer.

Duty to accommodate

The case law principles relating to the duty to accommodate imposed on the employer, in favour of the employee, are now integrated into the AIAOD.

This amendment enhances the existing right to return to work to facilitate the worker’s reinstatement in their employment, an equivalent employment or a suitable employment. From the outset, the employer has a duty of reasonable accommodation under the provisions of the Charter of Human Rights and Freedoms in the event of an employment injury. The AIAOD must therefore be interpreted in light of this duty.

Consequently, despite the existence of a time limit for the worker to exercise their right to return to work, the expiry of this time limit does not avail the employer of his duty to accommodate.

To this end, the AIAOD introduces two presumptions:

• If the worker regains capacity before the expiration of the right to return to work time-limit, this presumption is absolute , since the employer is deemed to be able to reinstate the worker;
• In the event that the worker regains capacity after the expiration of the right to return to work time-limit, it is a simple presumption, since the employer is presumed to be able to reinstate the worker.

In all cases, the employer is required to provide the information and documents necessary to determine the worker's capacity to carry on their employment, an equivalent employment or a suitable employment. In addition, the CNESST may order an employer who refuses to cooperate in the return-to-work process or to reinstate the worker in their employment, an equivalent employment or a suitable employment available despite a decision to that effect, to pay an administrative monetary penalty. The penalty is equivalent to the income replacement indemnity to which the worker would have been entitled during the period the employer was in default. The amount of the penalty can be up to a maximum of one year's income replacement indemnity.

It should be noted that the employer will not be obliged to reinstate the worker if such reinstatement would cause the employer undue hardship . The parameters developed by the case law on this issue also apply in the context of an employment injury.

Bureau d’évaluation médicale

The CNESST must transmit, without delay, the contestation and the worker's complete medical file to the Bureau d'évaluation médicale (the BEM). The purpose of this amendment is to ensure that the medical record is sent to the BEM at the same time as the contestation, which was not the case before.

In this regard, when the BEM member determines the date of consolidation, they must now rule on the existence of functional limitations and on the percentage of permanent impairment of the worker's physical or psychological integrity. However, they are not required to rule on these matters if medical reasons prevent them from doing so. They must, however, explain these reasons in their opinion.

Finally, when the BEM member is of the opinion that the injury no longer requires care and treatment, they may determine the date of consolidation, in which case they will also have to rule on the functional limitations and the percentage of permanent impairment.

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The coming into force of An Act to modernize the occupational health and safety regime : What you need to know

Bill 59, An Act to modernize the occupational health and safety regime (the “Bill”), was passed on September 30 and assented to on October 6. This is the first major revision in this field in decades. The Bill makes significant amendments to both the Act respecting occupational health and safety (hereafter the “OHSA”) (R.S.Q., c. S-2.1) and the Act respecting industrial accidents and occupational diseases (hereafter the “AIAOD”) (R.S.Q., c. A-3.001).

Certain provisions of the Bill came into force immediately upon assent. Other provisions will come into force up to six months after assent, and still others a year or more after assent. Our team specializing in occupational health and safety law has identified the new provisions and amendments that are most likely to affect employers in processing and managing their occupational health and safety files.

Amendments applicable upon assent (October 6, 2021)

Occupational diseases

One of the most notable aspects of this reform is the adoption of the Regulation respecting occupational diseases , which includes a schedule listing the conditions that are presumed to be eligible under section 29 of the AIAOD.

The AIAOD already included a schedule with five divisions identifying certain types of diseases as occupational diseases. The schedule of the new regulation contains eight divisions and adds oncological diseases and mental disorders to the categories of diseases covered by the presumption. The newly added oncological diseases and cancers mainly apply to firefighters who have been exposed to gas and smoke. Other additions to the list include post-traumatic stress disorder, under certain circumstances, and Parkinson’s disease for agricultural workers.

The initial draft of the Bill introduced, in the schedule, specific eligibility criteria for occupational diseases caused by noise. These draft provisions respecting eligibility criteria were stricken out at the committee stage. The version that was ultimately adopted contains wording identical to that which previously prevailed, but provides that the Commission des normes, de l’équité et de la santé et de la sécurité du travail (“CNESST”) has the authority to determine, by regulation, eligibility criteria for occupational diseases caused by noise.

New committees

The Bill also establishes new committees. The Comité scientifique sur les maladies professionnelles (Scientific committee on occupational diseases) will identify and analyze scientific research and studies, analyze the causal relationships between specific risks and occupational diseases, and report to the Minister and the CNESST in order to facilitate the updating of the new regulation on occupational diseases.

The sections governing this committee will come into force on the day its members are appointed.

The Comité des maladies professionnelles oncologiques (Committee on occupational oncological diseases), similar to the Comité des maladies professionnelles pulmonaires (Committee on occupational lung diseases), will be responsible for determining whether a worker is suffering from an oncological disease in the case of diseases not explicitly provided for in the schedule to the Regulation respecting occupational diseases . The CNESST will then be bound by the Committee’s findings.

The sections that establish this Committee will come into force sixty days after the appointment of all its members.

Another amendment that should be taken into account relates to the Committee on occupational lung diseases. This committee will have more flexibility in that it is now allowed, in certain circumstances, to render its decision based on a simple analysis of the record, without examining the worker.

Protection for workers exposed to physical and psychological violence, including spousal, family and sexual violence

In addition to the general duties of the employer under the Act respecting occupational health and safety , the Bill requires the employer to take measures to ensure the safety and psychological integrity of workers, in addition to protecting their physical health. Employers must take necessary measures to ensure the protection of a worker exposed to physical or psychological violence, including spousal or family violence, in the workplace.

The identification of risks specific to different workplaces and the prevention measures to be developed will henceforth have to account for both physical and psychological health issues.

The concept of psychological integrity must also be considered when establishing a temporary work assignment for injured workers.

Remote work

An amendment to the initial draft of the Bill now provides that the location from where the employee works remotely is considered a workplace within the meaning of the OHSA.

This modernizes the OHSA to bring it into line with the current reality of the labour market. However, when combined with the new requirement mentioned above to ensure the protection of any worker affected by a situation of physical or psychological violence, including spousal or family violence, this development considerably increases the burden on employers.

Employers will therefore have to remain vigilant and proactive in the implementation and application of their work policy. It will be interesting to follow the jurisprudential developments on this issue, particularly with respect to the extent of the employer’s duties regarding workers’ private residences and any other location from which remote work may be carried out.

While the OHSA allows CNESST inspectors to enter workplaces to perform their duties, there is an exception when it comes to remote work when the location is a private residence. However, a judge of the Court of Quebec may authorize an inspector to enter a private residence if he or she has reasonable grounds to believe that the worker or a person in that residence is exposed to a danger that puts his or her life, health or safety at risk.

Penalties and fines

The amendments to the penal provisions that govern contraventions of and offences under the AIAOD came into force on October 6, 2021. The minimum and maximum fines are, for the most part, doubled or increased even further. However, the fines under sections 236 and 237 of the OHSA remain unchanged.

Imputation and financing

While the Bill initially provided for major changes to the mechanisms available to employers to reduce the cost impact of workers’ compensation cases, representations by employers during the committee stage seem to have secured the withdrawal of these amendments and the preservation of these gains.

Thus, cost sharing for pre-existing disabilities remains unchanged. Other amendments that restricted the possibilities of sharing and transferring the imputation of the cost of benefits, particularly in cases where an employer is unfairly burdened, were also not adopted.

However, the Bill specifically provides for the possibility of obtaining a transfer of imputation if the injury occurred solely because of the worker’s gross and wilful negligence. In this situation, and in the case of an injury that arises in the course of care or lack of care, the transfer can only be granted once the final decision has been rendered.

Amendments applicable one year following assent (October 6, 2022)

Temporary assignment form

As of October 6, 2022, employers and all other stakeholders will have to use the form prescribed by the CNESST to temporarily assign work to a worker. This provision will help standardize requests for temporary assignments, but may also result in delays in the processing of certain cases, particularly when a stakeholder fails to complete the form or is late in doing so.

The physician in charge of the worker will have to indicate on this form his or her findings regarding the worker’s temporary functional limitations. However, these findings cannot be used to initiate the medical evaluation procedure.

Changes to rehabilitation measures

Rehabilitation measures will be extended to include more workers and can now begin earlier. Whereas before the right to rehabilitation only arose once it was determined that the worker sustained a permanent impairment due to his or her employment injury, it will now be possible for the CNESST to grant these measures as soon as a claim for an injury is accepted, even before its consolidation.

The duty of reasonable accommodation

Employers already have a duty to reasonably accommodate workers who have suffered an employment injury. In this regard, the Bill allows the CNESST, if the period of absence or the situation of the worker warrants it, to provide for his or her progressive return to work in order to facilitate his or her reinstatement with the employer. It also gives the CNESST greater power to determine suitable employment, regardless of the expiry of the period prescribed for a worker to exercise their right to return to work. The CNESST will determine whether accommodations are necessary to enable the worker to work for his or her employer, subject to the employer demonstrating that such accommodation would impose undue hardship.

In this regard, the AIAOD now provides for the CNESST’s power to impose a monetary administrative penalty, equivalent to the cost of benefits for a given period, on any employer who refuses to cooperate in the accommodation process or who refuses to reinstate a worker despite a decision establishing the worker’s ability to hold his or her job, or an equivalent or suitable job, before the right to return to work expires.

Powers of the Bureau d’évaluation médicale (“BEM”)

When a member of the BEM rules on the date on which an employment injury is consolidated, the member must now also rule on the existence and degree of the worker’s permanent physical or mental impairment and the extent of the worker’s functional limitations. If the member is unable to express his or her opinion, he or she will have to explain why. The BEM member may also express his or her opinion regarding the date of consolidation of the injury if he or she considers that the injury no longer requires care or treatment.

Amendment applicable as of April 6, 2023

Optimization of appeals and review of CNESST decisions

As of April 6, 2023, a person who is the subject of a decision of the CNESST regarding medical matters or concerning the financing of the occupational health and safety regime may apply for a review of the decision within 30 days of its notification or contest it directly before the Administrative Labour Tribunal within 60 days of its notification. In addition, as of the same date, the time limit for contesting a decision before the Administrative Labour Tribunal will be within 60 days of being notified of the decision, instead of 45 days.

Conclusion  

The purpose of this article was to inform you of the major amendments made to the occupational health and safety regime that are likely to affect the day-to-day management of occupational injury cases in your workplace. It provides an overview of some of the many changes brought about by the coming into force of Bill 59. The scope of these changes and their consequences may vary depending on the sector in which you work. We invite you to contact our occupational health and safety team for any specific questions on this subject.

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Québec Employers: The Rules for Injured Workers’ Temporary Assignment and Workplace Reintegration Have Changed

On October 6, 2021, the Act to modernize the occupational health and safety regime took effect. As indicated in the act’s title, its purpose was to modernize Québec’s occupational health and safety regime with regard to the prevention and compensation of employment injuries.

The act primarily amended the Act respecting industrial accidents and occupational diseases (ARIAOD) with various changes to take effect gradually between 2021 and 2024.

On October 6, 2022, the latest changes came into force. These will notably require employers to change certain internal procedures and consider new employee rights when it comes to the temporary assignment of work and accommodation of functional limitations. This article focuses on these particular changes from a practical standpoint.

Temporary Assignment Forms

Employers must now use the Commission des normes, de l’équité, de la santé et de la sécurité du travail’s (CNESST) temporary assignment of work form whenever they wish to invite an injured employee’s physician to allow his or her patient’s return to work on modified duties until such a time as the employee is capable of returning to regular duties. Before this amendment, there was a proposed form, but its use was not mandatory.

The devil here for employers lies not in this requirement, but in the details of the form itself, which the CNESST has amended from one page to three pages. It is to be noted that the contents of the form itself are not dictated by the legislative amendment. It is therefore administratively dictated by the CNESST. Under this new form, employers are now limited to proposing only two assignments, while under previous rules there was no limitation as to how many proposals could be made, therefore making it more difficult for a treating physician to refuse a worker’s temporary assignment. Under the new form, however, the physician will have to specify the worker’s functional limitations, and, should the physician refuse a proposal, the reasons for the refusal must be stated in relation to the limitations. Regardless of whether an assignment is accepted, the employer must forward the form to the CNESST.

Rehabilitation Measures

Prior to October 6, 2022, the CNESST could not technically provide rehabilitation measures to an injured employee prior to the employment injury’s being “consolidated” (i.e., hitting a healing plateau) and a permanent impairment being established. Practically speaking, however, it would initiate rehabilitation discussions with the employer as soon as the consequences of the injury were foreseeable and rehabilitation measures were sure to be required.

An amendment has now made this practice official. The CNESST may now provide rehabilitation measures as soon as a worker’s compensation claim is accepted.

Duty to Accommodate

Under the ARIAOD, employees typically have a specific window of time during which they are allowed to return to work following a workplace accident. Nevertheless, the employer’s duty to accommodate the individual has always gone beyond the “right to return to work” period.

New amendments to the right to return to work now enhance employees’ accommodation protection by facilitating their reinstatement to the workplace, be it in their own jobs or in equivalent employment or suitable employment. In essence, the CNESST now has greater powers to assess whether rehabilitation measures may enable a worker to return to his or her position or to an equivalent position. Moreover, the CNESST can now assess the need for a reasonable accommodation in order to reinstate the worker to the employer’s workplace (such as by adjusting tasks or modifying work schedules). The determination of whether a reasonable accommodation is necessary and available to enable the worker to hold a suitable position available with the employer now rests solely with the CNESST, which can issue a binding decision accordingly. Employers retain the right to challenge a CNESST assessment by showing that it would cause them undue hardship.

This amendment, in essence, is in response to a Supreme Court of Canada decision issued in 2018 that clarified the CNESST’s powers with respect to enforcing accommodation obligations. In the past, the CNESST would rely on the employer’s own assessment of whether it could accommodate a worker through the offer of a suitable employment and would rarely, if ever, challenge an employer’s negative determination.

Finally, as an added incentive for employers to cooperate, should an employer fail to cooperate in the return-to-work process, the CNESST may issue an administrative monetary penalty equivalent to the income replacement benefit to which the worker would have been entitled during the period that the employer was in default. The penalty can go up to one year’s worth of income replacement benefits.

Implications for Employers

Employers may want to ensure that their internal teams responsible for managing workers’ compensation claims are now using the CNESST-mandated form for all temporary assignment offers in order to avoid seeing their proposals declared void and not binding by the CNESST. This could occur if a worker failed to show up for a temporary assignment and the employer requested that its income replacement indemnities be suspended under section 142 of the ARIAOD. Again, those forms, once completed, are to be forwarded to the CNESST.

Further, employers may want to pay close attention to their new obligations regarding the duty to accommodate. While this duty goes beyond the strict legal scope of the ARIAOD, any employer behavior that is determined by the CNESST to be uncooperative could lead to penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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October 4th, 2022

Important amendments to the aiaod effective as of october 6 th for employers.

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.

Practical advice

The coming into force of these changes will certainly modify HR practices in the management of occupational injuries for employers operating in Québec. 

We invite you to contact our team for more information on this subject.

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Send the CNESST forms electronically

Thanks to our partnership with the CNESST , you can send your reports and forms to them electronically through our EMR .

Several advantages:

• Not no need to order forms, buy stamps or envelopes anymore
• Instantaneous transmission
• A copy saved electronically in the patient's record
• Persistence of some answers reducing time spent on typing information

CNESST available forms

Nine forms can be transmitted to the CNESST through our EMR and a tenth was created in order to transmit other types of documents to the CNESST:

• Medical statement
• Medical report
• Final report
• Medical assessment report
• Certificate for the preventive withdrawal or assignment
• Temporary work assignment
• Supplemental report
• Written additional medical information
• Bilan médical
• Files transmission

Transmit the CNESST forms electronically

• Consult the instructions  at the beginning of the form to remind you of the various steps to follow to ensure that your reports are transmitted.

• A maximum of 4 to 5 files can be sent with the form (depending on the tool).
• It is mandatory to indicate what type of file is attached.
• Each file cannot exceed 1.5 MB.

• Yes  - The form will be sent when you save it next.
• No, because you haven't confirmed above that you want the report to be sent upon next save  - If you answered  No  to the "Do you want the report to be sent to the CNESST upon next save?" question .
• No, as the following errors need to be fixed  - The errors will then be displayed at the end of the form.
• Choose the language  at the bottom of the form as it will determine the language of the form that will be returned by the CNESST and that you will print to hand over to the patient.

Technical clarification

The PDF form returned at the bottom of the clinical note may come from CNESST or Omnimed.

The  forms returned by CNESST  are the following and consequently include a CNESST reference number:

- Medical statement

- Medical report

- Final report

- Medical assessment report

The  other forms  are also sent to CNESST but the  PDF is generated by Omnimed . These PDFs are identified with the prefix "CNESST_" before the name of the form.

8. If you make changes  to the form and then click on the  Save  button, a new report including your changes will automatically be sent to CNESST. CNESST will return a new form confirming receipt of the request and the first form will be removed.

Important notes

• The limit of the number of characters in the text fields, the limit of attached files, and the size of the files are determined by the CNESST and allow the proper functioning of the electronic routing of the forms.
• To make sure that the patient who suffered an occupational injury understands well the evolution of his medical condition and for him to be able to share precisely this information with his employer, the CNESST thinks that it is important for the physician in charge to hand a copy of each medical report to the patient . This is the reason why you have a printing option at the end.
• Mandatory consolidation date : The CNESST, by law, requires that a consolidation date be indicated. However, they state that you can indicate an approximate date and that this date can be changed at any time.
• Already consolidated lesion : When a lesion is already consolidated, the CNESST requests that you indicate the date of the day after the visit as the consolidation date and that you indicate in the form that the lesion is consolidated.

⚠️ If you inadvertently complete a CNESST report in the wrong patient's file , you must contact the CNESST to notify them, delete the report from the patient file , then start again in the right file.

Send any other document to the CNESST through our system

If you need to send a document, other than the nine forms available in our EMR, you can use the tool called CNESST - Files transmission .

• You can add up to five files with a maximum of 1.5 MB each.

⚠️ No confirmation or PDF return from the CNESST will be displayed in the log of the note for the transmission of this clinical tool.

External resources

We invite you to check out these resources (available in French only):

• Foire aux questions DMÉ sur la transmission des rapports médicaux de la CNESST
• Guide d'utilisation des formulaires médicaux de la CNESST

Canada: Québec Employers: The Rules For Injured Workers' Temporary Assignment And Workplace Reintegration Have Changed

On October 6, 2021, the Act to modernize the occupational health and safety regime took effect. As indicated in the act's title, its purpose was to modernize Québec's occupational health and safety regime with regard to the prevention and compensation of employment injuries.

The act primarily amended the Act respecting industrial accidents and occupational diseases (ARIAOD) with various changes to take effect gradually between 2021 and 2024.

On October 6, 2022, the latest changes came into force. These will notably require employers to change certain internal procedures and consider new employee rights when it comes to the temporary assignment of work and accommodation of functional limitations. This article focuses on these particular changes from a practical standpoint.

Temporary Assignment Forms

Employers must now use the Commission des normes, de l'équité, de la santé et de la sécurité du travail's (CNESST) temporary assignment of work form whenever they wish to invite an injured employee's physician to allow his or her patient's return to work on modified duties until such a time as the employee is capable of returning to regular duties. Before this amendment, there was a proposed form, but its use was not mandatory.

The devil here for employers lies not in this requirement, but in the details of the form itself, which the CNESST has amended from one page to three pages. It is to be noted that the contents of the form itself are not dictated by the legislative amendment. It is therefore administratively dictated by the CNESST. Under this new form, employers are now limited to proposing only two assignments, while under previous rules there was no limitation as to how many proposals could be made, therefore making it more difficult for a treating physician to refuse a worker's temporary assignment. Under the new form, however, the physician will have to specify the worker's functional limitations, and, should the physician refuse a proposal, the reasons for the refusal must be stated in relation to the limitations. Regardless of whether an assignment is accepted, the employer must forward the form to the CNESST.

Rehabilitation Measures

Prior to October 6, 2022, the CNESST could not technically provide rehabilitation measures to an injured employee prior to the employment injury's being "consolidated" (i.e., hitting a healing plateau) and a permanent impairment being established. Practically speaking, however, it would initiate rehabilitation discussions with the employer as soon as the consequences of the injury were foreseeable and rehabilitation measures were sure to be required.

An amendment has now made this practice official. The CNESST may now provide rehabilitation measures as soon as a worker's compensation claim is accepted.

Duty to Accommodate

Under the ARIAOD, employees typically have a specific window of time during which they are allowed to return to work following a workplace accident. Nevertheless, the employer's duty to accommodate the individual has always gone beyond the "right to return to work" period.

New amendments to the right to return to work now enhance employees' accommodation protection by facilitating their reinstatement to the workplace, be it in their own jobs or in equivalent employment or suitable employment. In essence, the CNESST now has greater powers to assess whether rehabilitation measures may enable a worker to return to his or her position or to an equivalent position. Moreover, the CNESST can now assess the need for a reasonable accommodation in order to reinstate the worker to the employer's workplace (such as by adjusting tasks or modifying work schedules). The determination of whether a reasonable accommodation is necessary and available to enable the worker to hold a suitable position available with the employer now rests solely with the CNESST, which can issue a binding decision accordingly. Employers retain the right to challenge a CNESST assessment by showing that it would cause them undue hardship.

This amendment, in essence, is in response to a Supreme Court of Canada decision issued in 2018 that clarified the CNESST's powers with respect to enforcing accommodation obligations. In the past, the CNESST would rely on the employer's own assessment of whether it could accommodate a worker through the offer of a suitable employment and would rarely, if ever, challenge an employer's negative determination.

Finally, as an added incentive for employers to cooperate, should an employer fail to cooperate in the return-to-work process, the CNESST may issue an administrative monetary penalty equivalent to the income replacement benefit to which the worker would have been entitled during the period that the employer was in default. The penalty can go up to one year's worth of income replacement benefits.

Implications for Employers

Employers may want to ensure that their internal teams responsible for managing workers' compensation claims are now using the CNESST-mandated form for all temporary assignment offers in order to avoid seeing their proposals declared void and not binding by the CNESST. This could occur if a worker failed to show up for a temporary assignment and the employer requested that its income replacement indemnities be suspended under section 142 of the ARIAOD. Again, those forms, once completed, are to be forwarded to the CNESST.

Further, employers may want to pay close attention to their new obligations regarding the duty to accommodate. While this duty goes beyond the strict legal scope of the ARIAOD, any employer behavior that is determined by the CNESST to be uncooperative could lead to penalties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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