For a safe pregnancy: The Court of Appeal clarifies employers' obligations

The Court of Appeal of Quebec¹ recently clarified employers’ obligations when a pregnant or breastfeeding worker asks to be assigned to other duties under the For a Safe Maternity Experience Program (SMEP):

• Employers have an obligation to try to assign a worker to other safe tasks. They cannot opt for a preventive withdrawal merely because it’s the most economical solution. 
• If an employer deems it impossible to reassign a worker, it must justify its decision.

The court also confirmed that a worker who has not been reassigned can file a complaint with the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST, Quebec's workplace health and safety board).

Before turning to practical recommendations, a brief background on this decision is in order.

What is the SMEP?

If a pregnant or breastfeeding worker believes that her work poses a risk to her child or herself, she can ask her employer to assign her to other duties by submitting the SMEP certificate² completed by her health care professional.³

In the event of a reassignment, the employer must continue to pay the employee her usual wages.⁴ However, the employer may be reimbursed by the CNESST for the difference between her usual wages and those of the position to which she is reassigned.⁵ If the worker is not reassigned, she stops working and is compensated first by the employer, then by the CNESST, subject to a maximum insurable amount.⁶ Amounts paid in this way are not charged to the employer’s file, thereby avoiding an increase in premiums.⁷

As a result of the foregoing, preventive withdrawal is often the preferred solution. The employer avoids paying wages to two employees, the reassigned worker and the person replacing her, while the worker receives a large part of her wages without having to work. However, if the worker does not wish to stop working or her wages exceed the insurable maximum, preventive withdrawal becomes less attractive from the worker’s point of view. This is what led to the case recently ruled on by the Court of Appeal.

The case ruled on by the Court of Appeal

It all began when a municipal police department (the Employer) refused the reassignment request of one of its patrol sergeants (the Worker), preferring to withdraw her from her position. Dissatisfied, the Worker filed a complaint with the CNESST, claiming to have been subjected to adverse action due to the exercise of a right.

The CNESST and the Tribunal administratif du travail (the TAT, administrative labour tribunal) each concluded that the complaint was inadmissible, arguing that the Act respecting occupational health and safety did not provide for any “right to reassignment.”⁸ According to the TAT, the legislative provisions underlying the SMEP are aimed at preventive withdrawal; the choice of reassigning a worker and paying her compensation would be a management right.

This decision was subsequently appealed to the Superior Court,⁹ and then to the Court of Appeal, where the Worker won her case each time. 

In its ruling, the Court of Appeal corrects the TAT; the primary objective of the provisions designed to protect pregnant or breastfeeding workers is to allow for a reassignment. There is therefore a “right to reassignment,” and preventive withdrawal is only permitted when it is impossible to comply with that right, in which case the employer must justify its decision.

To date, the Employer has not filed an application for leave to appeal to the Supreme Court.

Practical recommendations

In order to prevent a violation of the latest Court of Appeal instructions, employers with operations in Quebec should implement a procedure that:

• designates the individual(s) responsible for processing requests for reassignment 
• stipulates that each request for reassignment must be documented 
• promotes dialogue between the worker submitting the request and the employer to avoid misunderstandings
• defines the criteria for deeming a reassignment impossible. To this end, it is useful to draw inspiration from the concept of undue hardship in the context of reasonable accommodation. However, for recommendations applicable to a specific case, we encourage you to contact a member of our team.