Bill 59 Means Reduced Compensation and Increased Impoverishment for Injured and Sick Workers
Workers' Forum is publishing an interview with Félix Lapan,
community organizer with the Union des travailleuses et travailleurs
accidentés ou malades (UTTAM), on the Quebec government's Bill 59.
Workers' Forum: What will be the consequences of Bill
59, if it is adopted, on compensation for injured and sick workers,
many of whom live in poverty now?
Félix Lapan: To give you an example, the bill
changes the definition of suitable employment. Suitable employment is
determined by the Labour Standards, Pay Equity and Workplace
Health and Safety Board (CNESST) when someone [due to injury or illness] can no longer return to his or
her job or hold an equivalent job with his or her employer. It is
a job that the CNESST determines that the worker will be able to do.
The definition has been changed to make it more difficult for a worker
to launch a court challenge to a decision made by the CNESST that a job
is suitable. Under this change, decision-makers will only have to
consider the essential and characteristic tasks of the job deemed
suitable and not, as is now the case, secondary or incidental tasks
that are also part of the job and may require physical efforts that
workers are not able to perform.
In addition, with the limited vocational rehabilitation that CNESST
provides, workers may not be able to find these suitable jobs, may not
be hired because they are competing with workers who have not been
who do not suffer long-term effects of an injury, who are in good
health. As a result many workers, in order to protect
themselves, challenge the decisions of the CNESST on the suitability of
a job, and ask to have appropriate training to be able to do a job.
Currently the court often overturns the decisions of the CNESST about
what is suitable employment because vocational rehabilitation is so
rushed by CNESST. Instead of improving the vocational
rehabilitation services of the CNESST, the proposed changes to the
definition of suitable employment will allow the courts to stop
overturning the CNESST's decisions on what constitutes suitable
It is important to understand that when workers fail in their appeal to the court, they often end up on social assistance.
The bill also includes changes to the medical assessment process.
These are changes to how the Medical Evaluation Board (BEM) will
process cases. The purpose
of these changes is to speed up the process of closing the worker's
medical file. The bill authorizes the BEM physician to make
unilateral decisions. The worker's physician could say that the injury is not consolidated [this
refers to the healing or stabilization of a workplace injury following
which no improvement of the state of health of the injured worker is
foreseeable -- WF Ed. Note]
or that the worker's condition would improve with further treatment,
and the employer's designated physician could say the same thing. But
the BEM physician could say that the worker must go back to work. In
that case, the CNESST stops paying benefits. If the person is not really
able to do his or her job, this often has drastic consequences. Such
tragic consequences will get even worse if the bill is adopted.
The bill also gives coercive powers to the CNESST in vocational
rehabilitation. From now on, the CNESST will impose job search support
requirements. It is being given regulatory power to say that you must
do five or 10 job searches in a week or you will be cut off. Currently,
someone who can no longer return to their job because of an
injury is entitled to one year of compensation to find a new job. In
fact, since the CNESST almost never pays for training, many workers use
that year to take courses and access rehabilitation services. This will
no longer be possible because CNESST will force the worker to go to a
job search assistance agency or guidance counsellors who are
subcontracted by the CNESST.
we are faced with a general increase in the complexity of the claims
mechanism and the challenge process that is truly mind-boggling. Even
for those of us who work on these issues all the time, it took us a
while to understand these changes. I can't see how a worker who
doesn't know the law is going to understand when to make a
claim for an occupational disease, how much time they have, etc. It's
really twisted and complex.
WF: What will be the consequence in terms of poverty for injured or sick workers?
FL: The current system, because of its complexities
and because it encourages employer challenges and CNESST challenges to
the worker's treating physician, is already driving many people into
poverty every year. These are people who were once working, who were
capable of working, and who have suffered an injury as a
result of which they have lost their ability to work, their job and
their income. Because of all sorts of pitfalls, they end up on social
assistance or surviving on a Quebec Pension Plan disability pension. We
are already seeing this.
This reform will impoverish many more people.
The bill has just added a bunch of pitfalls, obstacles to what is
already complex. More people will be thrown out of the system.
When the minister talks about the "savings" that will be made with
this bill, more than $4.3 billion over ten years, he is not talking
about savings for the Quebec government. He is talking about savings
for the employer. The regime is 100 per cent funded by employers. It is
a system that stems from civil liability. Workers do not have the right
to sue their employers in civil court. Instead, they file claims
through the CNESST. And CNESST is 100 per cent funded by employers and
operates as insurance for employers in a no-fault system.
Regarding all the costs that will no longer be paid by the system,
the first victims will be injured workers who will lose medical
treatment and compensation benefits. The consequences of the $4.3
billion that will be "saved" will be borne by the victims of
occupational injuries, by their families and by society as a whole,
because the victims
will increasingly have to rely on social assistance, employment
insurance, the Quebec pension plan and the public health system for
costs that the CNESST will no longer cover.
This bill is a huge step backwards. It attacks rights that have been
established for 35-40 years and it does so in the middle of a pandemic,
when people are focused on fighting the pandemic. We will fight this
reform to the end.
1. The Medical
Evaluation Board (BEM) was created in 1992 as part of legislation that
amended the Act respecting industrial accidents and occupational
diseases, among others. The BEM is under the responsibility of the
Ministry of Labour, Employment and Social Solidarity. Its official mandate is to make a final decision when there are two
contradictory opinions, i.e. the opinion of the worker's attending
physician and a medical opinion obtained by the employer or by the
CNESST. The workers have waged relentless actions against the BEM,
which regularly rules unfairly in favour of the employer or the CNESST
against the worker and his or her attending physician. In their
the workers say that "you go into the BEM, you are crippled. You come
out of there cured. It's a miracle." Injured workers and their advocacy
organizations are demanding the abolition of the BEM.
This article was published in
May 19, 2021 - No. 46