We’ve already heard statements like “It’s a private matter”, “It’s none of your business”, “It’s personal”. Prior to October 6th, 2021, employers could just stop there and still have a clear mind about it. Can they still do the same with the new amendments to the Act Respecting Occupational Health and safety (AROHS)?
Since October 6th, 2021, and according to Article 51 paragraph 16 of the AROHS, employers must take the measures to ensure the protection of employees exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace.
For the purposes of spousal or family violence, employers are required to take certain measures if they know or ought to reasonably know that an employee is exposed to such violence.
Spousal violence is defined as one that occurs between 2 people who are in a romantic, intimate relationship or one of a conjugal nature. These people may have been or are still in a relationship. Spousal violence can take different forms and involves a dynamic of control. As for family violence, it is the one that occurs when a person engages in abusive behaviour for the purpose of controlling or harming a family member or a person they are dating. Domestic violence can take different forms of physical and psychological abuse, as well as neglect by family members. (This Definition is inspired by the INSPQ’s Quebec Report on family violence from the website of the Government of Canada).[1]
Violence is a problem existing since the dawn of time but has surged during the pandemic. Situations of anxiety, isolation and economic frailty facing workers led to an increase in cases of spousal and family violence.
It is no longer a problem that only concerns the victim’s personal life. It also impacts other aspects of their life, including work. Employers and employees have together a role to play to end violence in the workplace.[2]
This not only has significant consequences on the victims and their loved ones but also has important repercussions on employers.[3]
Although cases of violence are not always easy to detect, an employer would have to keep an open eye on some signs that could be red flags such as: bruises on the victim, nervousness, anxiety, tiredness, a drop of productivity, repeated phone calls made discreetly, comments brought by other colleagues, frequent absences with no reasons, etc.
While these signs might be detectable in the workplace, they may be more subtle and even non detectable at all in work from home situations. The Covid-19 crisis has increased spousal violence rates. For that reason, the INSPQ believes that working from home might lead to more ways to control the victim of spousal violence and interfere with employee’s efficiency at work. Situations where a person is being socially isolated, cut off from outside communications, or having no way out, are just a few examples. The employer’s duty towards spousal violence transcends the boundaries of the workplace and reaches the employee’s home.[4]
The employer must take certain measures when they know or ought to reasonably know that the employee is exposed to such violence. But what are these measures? Also, what happens in a work-from-home situation where the employer has no actual control over the place? How can they fulfill their obligation while respecting the privacy of employees?
Having a single solution is not enough. It must be multiplied as much as possible and adapted to the reality of the workplace. Having various solutions means that there’s a better chance of detecting and revealing cases and a better way to adjust to different personalities. An employee might be more comfortable with one solution more than another.
Some of these solutions could be by offering employee assistance programs ensuring confidentiality, providing training sessions, raising awareness about the type of assistance offered by the employer, adding a special section on spousal or family violence to the policy against harassment and the work from home policy, etc.
Another inquiry that might be raised, is how far can an employer’s obligation go when the employee refuses help or does not want to talk about the issue? One thing is for sure, the employer cannot force an employee to speak up. Taking the necessary measures by an employer might entail a fulfillment of its obligation of means.
We will have to wait for court cases to guide us in the interpretation of what are the criteria for “taking measures” and what does “ought to reasonably know” entail.
Let’s stay tuned.
Click here for the French version of this post.
[1] CNESST website : cnesst.gouv.qc.ca : Violence conjugale, familiale ou à caractère sexuel et prévention
[2] Id.
[3] Carrefourrh.org : Violence conjugale : Nouvelle obligation pour l’employeur (23 février 2022)
[4] Id.
As part of her litigation practice, Nadia has appeared before civil and administrative tribunals both in provincial and federal matters. She is also invited to conduct workshops on subject matters including psychological and sexual harassment in the workplace as well as elderly protection against abuse.
Nadia Samy est une avocate pratiquant au Québec. Elle conseille et représente les clients dans différents secteurs du droit du travail et de l’emploi, notamment, en matière de contrats individuels de travail, de conventions collectives, de congédiement injuste, de harcèlement en milieu de travail, des sanctions disciplinaires, etc. Dans le cadre de sa pratique en litige, Nadia a plaidé des causes devant les tribunaux civils et administratifs au niveau provincial et fédéral. Elle est aussi conviée à animer des conférences sur des sujets en matière de harcèlement psychologique et sexuel en milieu de travail ainsi que la protection des aînés contre la maltraitance.
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