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May 20—A pregnant worker who refuses to perform unsafe work is entitled to income replacement benefits if the employer cannot provide suitable alternative work, the Supreme Court of Canada ruled May 1.
Quebec's Act Respecting Occupational Health and Safety provides financial security when workers temporarily withdraw from the workplace to avoid unsafe work and specifically entitles pregnant women to reassignment to work that does not pose a risk, Justice Rosalie Abella said in the 5-0 ruling.
The Supreme Court upheld an appeal by Marilyne Dionne, who had refused a teaching assignment in Quebec because her doctor said she was vulnerable to parvovirus B-19, which can be spread by children. Quebec's Professional Injuries Commission found Dionne ineligible for benefits because she could not enter the workplace.
The commission's ruling, upheld by the Superior Court of Quebec and the Quebec Court of Appeal, was incorrect because it was the employer's inability to provide a safe workplace that kept Dionne from working, not her pregnancy, the Supreme Court said, awarding Dionne her costs throughout.
“To conclude otherwise negates the objectives of the Act and penalizes pregnant women for doing precisely what the legislative scheme mandates: avoiding workplace health risks during pregnancy,” the court said.
The law involved is specific to Quebec, but the ruling could apply in other jurisdictions, according to Pierre Brun, a lawyer with the Montreal law firm Melancon, Marceau, Grenier and Sciortino, which represented Dionne. The lower courts found Dionne not legally a worker because she could not perform her duties, but the Supreme Court said this was an unreasonable view if it disqualified her from statutory protection, Brun told Bloomberg BNA.
“This decision will have a broader impact in statute interpretation across the country by providing a reminder that the rapid evolution of the workplace and the increased precariousness of many workers should not distract the courts from the true objectives of a law,” Brun said.
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The ruling is available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/13620/1/document.do.
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