Pregnant workers more vulnerable to health risks

Supreme Court reinforces right to refuse unsafe work
By Liz Bernier
|Canadian HR Reporter|Last Updated: 06/16/2014

During pregnancy, workers often become more vulnerable to health risks in the workplace — and pregnancy may trigger the right to refuse unsafe work.

That’s according to a recent ruling by the Supreme Court of Canada, which reinforced some of the legal protections offered to pregnant workers in Quebec.

In Dionne v. Commission scolaire des Patriots, the Supreme Court considered the case of a pregnant supply teacher, Marilyne Dionne, who was advised by her doctor she was susceptible to a number of harmful viruses. Her work environment — the classroom — posed a health risk because children are common carriers of some of the viruses.

Her doctor filled out paperwork with the Commission de la santé et de la sécurité du travail (CSST) to obtain preventative withdrawal for Dionne.

Under Quebec’s occupational health and safety law, pregnant women have the right to refuse unsafe work and receive a reassignment or, if that is not possible, the right to stop working and receive income replacement benefits. However, the school board — her employer — argued that because she was a supply teacher, Dionne did not have a contract of employment and so was not considered a “worker.”

The court delivered a unanimous decision that Dionne did meet the criteria of an employee and was, therefore, entitled to all of the legislated protections.

The decision makes a very strong statement about the right of pregnant workers to refuse unsafe work, said Sean Bawden, an employment lawyer at Kelly Santini in Ottawa.

“The upshot of all of it was (Justice Rosalie) Abella writing that the whole point of this legislation was not to discriminate against workers when they refuse to work because it would cause a risk to their health and safety,” he said.

“So (Dionne) had met the criteria, she was a worker and these concerns were legitimate. So, essentially, this is exactly what the program was set up to do — to prevent discrimination on the basis of unique risks to pregnant women.”

It really was a strong, powerful decision, said Bawden.

“From a Quebec standpoint, it gives a lot of teeth to their occupational health and safety act, and especially to pregnant mothers,” he said.

“Outside Quebec… I guess the question is are we going to see pregnant women in Ontario or other common law jurisdictions availing themselves of the right to refuse unsafe work on the basis of what’s said here?”

Health risks

Contagious viruses are a frequently cited concern for pregnant women, said Ward Murdock, president of the Society of Obstetricians and Gynecologists Canada in Fredericton.

“The most common ones that we find are exposure to viruses early on in pregnancy,” he said.

“For instance, fifth disease in pregnancy (and) chicken pox, if you haven’t been exposed previously — particularly in regards to teachers, who may be exposed on a daily basis and not know it. So we get a lot of questions about that. We get a lot of questions about: lifting in the workplace and how much you should lift and whether it’s safe to lift; hours of work in the workplace; and stress and high demands.”

The risks workers are liable to encounter will depend on the type of workplace, said Matthuschka Sheedy, health promotion consultant, prenatal education, at the Best Start resource centre at Health Nexus in Toronto.

People who are standing for long periods of time may need accommodations in terms of breaks.

“It’s about being able to take breaks, being able to put your feet up now and then, being able to rotate their tasks so that they’re doing a little bit of everything — not standing all the time, not sitting all the time, making sure they’ve got good shoes, maybe having a stool that they are able to use,” she said.

Workers with sedentary jobs will need to pay careful attention to ergonomics and adapting to meet their comfort level. Employers also need to consider environmental and exposure risks.

“For example, if you’re (working with) chemicals... make sure that they use chemicals that are considered safe,” said Sheedy.

Implications for employers

The implications of Dionne may not be far-reaching for employers in common-law jurisdictions outside Quebec, said Bawden.

“The utility might be a little limited, insomuch as it is a pretty discrete Quebec statute and Quebec is very different from the common law jurisdictions,” he said.

But employers should make every reasonable attempt to accommodate pregnant workers, said Murdock.

“Employers need to just ask questions. There’s a lot of information out there on pregnancy and workplace safety, and a lot of employers really are not aware of that.”

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