Even when someone is telecommuting, an employer still has a legal obligation to ensure that person’s health and safety, an obligation that now extends to domestic or sexual violence or harassment.
The advent of massive telework during the pandemic has indeed forced Quebec to adapt the Act respecting occupational health and safety in 2021 to include, in article 5.1, the fact that its provisions “apply to the worker who performs telework and to his employer”.
Thus, the legislator saw the obligation to go to the end of its logic with the addition of article 51.16 under which the employer must “take measures to ensure the protection of the worker exposed in the workplace to a situation of physical or psychological violence, [y compris] spousal, family or sexual violence”.
“There is little case law and we have a lot of questions from employers,” says Ms.e Marie-Hélène Jolicoeur, labor law specialist and partner at Lavery. This is a delicate and complex situation, which raises a multitude of other questions, but the law is clear: “The employer has an obligation of means. He must take steps to prevent risks to the health and safety of the worker, so his main responsibility is to act in prevention,” she says.
The means of prevention are not very different from what should already exist in a company, starting with the base, that is to say the adoption of a policy that includes a whistleblowing process. The employer must ensure that the policy is disseminated, accessible and accompanied by measures to raise awareness, train employees and human resources.
“When a situation is brought to his attention, action must be taken to put an end to the harassment. We must take steps to put an end to it if a behavior is brought to our attention and we must act if we know, if we are aware or we should know that the person is a victim, for example, of spousal or family violence under the law on occupational health and safety. »
At the end of the spectrum, there is the obvious. “If there is an emergency situation and the employer is aware, it is obviously the call to the police. »
In more subtle situations, where there are suspicions, performance problems or where the person confides, it is necessary to explore the support measures, for example “to see if the employer can allow a person who is a victim of domestic violence to return to work, if he can take accommodation measures or direct him to the right resources”.
“There are partnerships that are possible with shelters, where there is an emergency line, where there are workers who can present themselves, where there can be meetings”, lists Me Sweet heart.
Recourse against the employer?
But how far does this responsibility go? Can a victim of domestic violence working from home sue their employer for failing to intervene? “We are really in the process of building the law in this regard, underlines the lawyer first. But it is certain that if ever the employer knew, if he had to act, there could be recourse in psychological harassment, for example, which can include sexual harassment in certain respects. There could be moral damages that are granted, reimbursement of costs for psychological consultations. »
“There could also be a work accident claim. I was at work, I was harassed, it could be someone at home, a third party. In the workplace, it can be a supplier, it can be a third party, ”she continues.
Moreover, the arsenal extends beyond the Occupational Health and Safety Act. “It could be that there is a claim for psychological injury in the workplace. It can be a recourse under the Act respecting labor standards, a complaint for psychological harassment which can include sexual harassment, but it can also be a claim for a work accident under the Act respecting occupational health and safety. »
The employer’s liability is not limited to the workplace, and has been since well before the pandemic, moreover, since the latter can be called into question for events occurring during parties Christmas or professional events, for example. This same logic applies if a person is being harassed by text messages from colleagues outside of office hours.
“You can’t just say ‘it’s his private life.’ We can’t say that anymore. It is a message of social responsibility sent to us by the legislator,” she concludes.
We will have to see, in fact, how the courts will lean, which have already taken a turn to protect victims of domestic and sexual violence in criminal matters. In labor law, however, the field has not yet been cleared