Litigation Matters

The amendments introduced by Bill 68 to the ARLS bring restrictions regarding the obligation for employees to provide a medical certificate when absent due to illness or injury. 

The addition of a new paragraph to section 79.2 of the ARLS will prohibit employers from requesting a medical certificate for the “first three periods of absence not exceeding three consecutive days taken annually” (Bill 68, section 7). As a result, employers retain the right to ask for a medical certificate only when the absence extends beyond this new standard. 

In addition, Section 8 of Bill 68 now prohibits employers from requiring a medical certificate to justify absences for family or parental obligations, such as caring for a child or a relative (Bill 68, Section 9). An employer may still require the employee to provide a document justifying the absence, but this document can no longer be a medical certificate, regardless of the circumstances. 

The first version of Bill 68 prohibited any insurer or benefit plan administrator from requiring a medical consultation or follow-up for the continuation of disability benefits, except in such cases and under such conditions as may be prescribed by government regulation. However, this new provision contradicted the requirement for regular medical follow-ups, which is generally found in the definitions of total disability in disability insurance policies. 

The CLHIA submission drew the legislator’s attention to the fact that the prohibition on asking insureds to undergo regular medical follow-ups for the continuation of disability benefits could impact the termination rates of long-term disability coverage and therefore affect the financial viability of group plans. The Government of Quebec proved to be responsive to this argument and relaxed this restriction in the final version of Bill 68 by adding the new section 29.2 APAFM:

29.2. For the purpose of maintaining the payment of disability benefits, no insurer or employee benefit plan administrator may, even indirectly, require an insured, a participant or a beneficiary to receive a medical service at a predetermined frequency different from that considered appropriate by the attending physician of the insured, participant or beneficiary. A government regulation may determine the cases in which and the conditions on which an exception to the first paragraph may be made.

The new section 29.2 APAFM now prohibits insurers and benefit plan administrators from requiring medical visits at frequencies other than those deemed appropriate by the treating physician of an insured receiving disability benefits. It will therefore still be possible to require an insured to see their treating physician for an ad hoc medical consultation or follow-up, but such a request must be made sparingly, and not too frequently for the same insured to avoid indirectly inducing a medical frequency other than what was determined by the treating physician, which would be contrary to the new Section 29.2 APAFM. It will also become important to ask the Claimant for their next appointment date and keep records of these as part of the policy terms compliance requirement for regular follow-ups. 

The prohibition in Section 29.2 APAFM will not require insurers and benefit plan administrators to change the requirement for regular medical follow-ups that is generally found in disability insurance policies. However, the use of a contractual exclusion providing for the suspension or termination of disability benefits due to a deficient or inadequate medical follow-up may be compliant with Section 29.2 APAFM only if an insured does not comply with the medical follow-ups planned by their treating physician, but will not be compliant with Section 29.2 APAFM if the insurer or benefit plan administrator was the one that considered that the frequency of medical follow-ups established by the treating physician was insufficient. 

Bill 68 in no way limits the possibility for insurers and benefit plan administrators to question the treating physician in writing about the medical condition of a patient receiving disability benefits or to obtain the patient’s medical file. However, the final version of Bill 68 adds the new section 29.4 APAFM, which provides that the Quebec Minister of Health may require, by regulation, that a single claim form be used by physicians. The CLHIA plans to propose that the government draw on Nova Scotia’s initiative to standardize short-term and long-term disability forms jointly with insurers. However, we will see whether or not the Minister of Health will adopt a regulation requiring the use of a single form in the near future. 

Bill 68 will come into effect in successive steps. First, the amendments to the Act Respecting Labour Standards affecting the medical management of absenteeism at work by employers will come into force on January 1, 2025 (Bill 68, Section 11.3).

Section 29.1 of APAFM on paramedical services claims will come into force as soon as the first regulation made under section 29.1 of that Act has been adopted (Bill 68, Section 11.1) which is the adoption of the regulation stipulating the exceptions permitted by the Minister of Health under section 29.1, but it can not be before April 9, 2025.

It appears that the legislator failed to indicate the date on which Section 29.2 APAFM that impacts the management of disability claims will come into force. This omission will likely be corrected in the near future, but it is known, however, that this coming into force cannot occur before April 9, 2025 (Bill 68, Section 11). 

Insurers and benefit plan administrators will also have until October 9, 2027 to make the necessary amendments to their group and individual contracts to comply with the new requirements of sections 29.1 and 29.2 APAFM (Bill 68, section 11.2). 

It is important to note that the new Section 29.5 APAFM gives Santé Québec the authority to monitor compliance of the practices of insurers and benefit plan administrators with the new restrictions introduced by Bill 68 by requiring audit reports. In addition, Santé Québec may conduct on-site inspections to ensure that the practices of insurers and benefit plan administrators comply with the new rules. 

Non-compliance with the provisions of Bill 68 may result in administrative penalties of up to $5,000 for any violation. In addition, the new Section 29.15 APAFM provides for severe criminal penalties for an insurer or benefit plan administrator that requires a medical service in violation of sections 29.1. and 29.2 APAFM, ranging from $10,000 to $1,000,000.