Other Important Legislative Changes Affecting Quebec Employers

September 4, 2018

2018 is an important year for Quebec employers in terms of legislative changes which have an impact on the workplace. In addition to significant amendments to the Act respecting labour standards, key provisions of the Pay Equity Act have been struck down and recreational cannabis will be legalized across the country in the coming months.

Pay Equity Act

On May 10 of this year, the Supreme Court[1] concluded that several provisions of the Pay Equity Act[2] relating to the maintenance of pay equity were unconstitutional and therefore invalid.

Under the Pay Equity Act, employers subject to the Act must complete a pay equity maintenance assessment every 5 years. However, according to the Pay Equity Act, when the maintenance assessment reveals an omission to maintain pay equity during this 5-year period, employers are required to pay salary adjustments for the future only.

More specifically, the appeal to the Supreme Court concerned the following provisions relating to the maintenance of pay equity:

  • Section 76.5 adjustments to remuneration plus interest following a maintenance assessment shall only apply from the date of posting;
  • Section 76.3: the posting of the maintenance assessment does not need to include the date on which the pay inequity arose;
  • Section 103.1, par. 2: salary adjustments for the period prior to the posting of the maintenance assessment cannot be claimed from employers unless it is determined that an employer acted "in bad faith or in an arbitrary or discriminatory manner".

According to the highest court of the country, which upheld the decision of the Quebec Court of Appeal, these provisions perpetuate a disadvantage for women by allowing status quo where there is pay inequity, and granting amnesty to employers for the period preceding the maintenance assessment (i.e. a period of up to 5 years).

The legislator has one year from the date of this decision to amend these provisions of the Pay Equity Act relating to the maintenance of pay equity.

Legalization of cannabis for recreational use

On October 17, 2018, the recreational use of cannabis will be legalized in Canada.

The Quebec law on the subject, An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions[3], was adopted by the National Assembly on June 12, 2018.

Legalizing recreational cannabis is an opportunity for employers to update their alcohol and drug policy, or to adopt one if the employer does not have such a policy.

This policy should govern expectations, rights and obligations of the employer and employees with respect to alcohol and drug use, in particular by addressing the following topics:

  • The definition of the workplace and the scope of the policy
  • A prohibition on impairment by any substance when the employee is required to perform his or her duties
  • Rules regarding alcohol and/or cannabis consumption during social events organized by the employer or during business development activities
  • Alcohol and drug testing, particularly for safety sensitive positions
  • Accommodating employees affected by an addiction

[1] Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII)

[2] RLRQ, c. E-12.001

[3] SQ 2018, c 19

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