Pregnant Employee Has Right to Withdraw From Unsafe Work No Matter Employment Status or Workplace

Pregnant casual or temporary workers in Quebec have the right to withdraw from unsafe work environments just as permanent workers do, according to the recent Supreme Court of Canada decision in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 (CanLII).

Facts of this case

Under sections 40 and 41 of Quebec’s Act respecting occupational health and safety combined with the Act respecting industrial accidents and occupational diseases and the Regulation respecting the certificate issued for the preventive withdrawal and reassignment of a pregnant or breastfeeding worker, pregnant employees with a doctor’s certificate can withdraw temporarily from the workforce to avoid unsafe work. The provisions specifically allow a pregnant woman to refuse to perform work under conditions that present a health and safety danger to her or the baby she is carrying. When possible, the pregnant employee may be reassigned to other work to avoid those risks. If reassignment is impossible, she has a right to take preventive withdrawal, which entails stopping work and receiving income replacement benefits until reassignment is available or she gives birth. An employee on preventive withdrawal can receive 90 percent of her net salary and retains access to all the benefits from her employment.

The employee in question, Marilyne Dionne, was a pregnant contract supply teacher. After she became pregnant, she learned from her doctor that she was susceptible to a number of contagious viruses that can be spread by groups of children in a classroom, and these viruses could pose a risk to her pregnancy and harm the fetus.

The doctor completed the Preventive Withdrawal and Reassignment Certificate confirming that the workplace (in this case a classroom) presented a health risk. Dionne submitted the certificate to the Commission de la santé et de la sécurité du travail (CSST) and was told that she was eligible for the preventive withdrawal program. She also submitted the certificate to her employer, the school board, the Commission scolaire des Patriotes (CSP).

The school board challenged the CSST decision, arguing that Dionne’s inability to enter a classroom repudiated the contract. In addition, the school board claimed that the preventive withdrawal program is reserved for employees with a contract who are faced with unsafe work while pregnant and workers like Dionne have no employment contract between periods of supply teaching so they’re not eligible.

The Workplace Safety Tribunal (Commission des lésions professionnelles) agreed with the school board and set aside the CSST decision:

“Ms. Dionne’s inability to go into the school due to health risks meant that she was incapable of performing the supply teaching work required by the School Board. This incapacity meant that no contract of employment had been formed. Without such a contract, Ms. Dionne was not a ‘worker’ and was therefore outside the scope of the protection provided by ss. 40 and 41 of the Act.”

The tribunal’s decision was confirmed by Quebec’s Superior Court and the Quebec Court of Appeal.

Dionne appealed the case to the Supreme Court of Canada.

Supreme Court of Canada decision

The Supreme Court of Canada unanimously decided that the interpretation suggested by the school board would put precarious workers in the untenable position of having to choose between getting as well as keeping the job, and protecting their health and safety. It therefore ruled that Dionne can benefit from the protections of the Act respecting occupational health and safety including access to the preventive withdrawal program.

According to the Supreme Court:

“A contract was formed on November 13, 2006, when Ms. Dionne accepted the School Board’s offer to supply teach and therefore became a ‘worker’ in accordance with the definition in s. 1 of the Act. Her pregnancy was not an incapacity that prevented her from performing the work, it was the dangerous workplace, and that in turn triggered her statutory right to substitute that work with a safe task or withdraw.”

“The scheme is intended to protect pregnant workers who have a contract to work. It would be anomalous, to say the least, to use the legislated right of a pregnant worker to withdraw from an unsafe workplace to conclude that her withdrawal negates the formation of the contract of employment.”

“Upon accepting the School Board’s offer on November 13, 2006, Ms. Dionne was presented with a choice: she could attend at the school and teach for the day, exposing her fetus to danger, or she could rely on her Certificate to assert her right to Preventive Withdrawal under the Act. She chose the latter, and in so doing relied on her statutory right to refuse dangerous work. Upon invoking her Certificate, she was entitled to Preventive Withdrawal, and the School Board was immediately required to offer her other tasks compatible with her health needs. No such offer of reassignment took place.”

Moreover, the highest court in Canada recognized that the right to refuse unsafe work is automatically part of every employment contract between every worker and every employer. A worker’s refusal to perform unsafe work is the exercise of a legal right, not a refusal to fulfil the employment contract. As a result, workers don’t have to choose between job security and their health or safety.

The practical application of the decision will be interesting for Quebec employers with pregnant casual or temporary workers who cannot fulfil the terms of their contracts.

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Comments

  1. Matthew Simon

    I think the court is pushing it a bit. Regardless of the pregnancy, the logic of the argument could be applied to anyone — exposure to childhood viruses is part of the work environment of teachers and childcare workers. Any teacher could then argue that they could be exposed to a potentially harmful virus and refuse work on those grounds. While the risk is microscopically small it’s present in the work environment. Is this sufficient to require accommodation? I don’t think so and the application of this ruling is impractical.

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