Worker filed complaint after employer removed her from work following request for safe work
The Quebec Court of Appeal has upheld a lower court’s ruling that overturned an Administrative Labour Tribunal (ALT) finding that an employer didn’t have to explore reassignment options after removing a pregnant worker from her regular duties for safety reasons.
“While employers are not guarantors of a successful reassignment, they are required to seek options and to explain – transparently - why a reassignment is impossible,” says Kevin MacNeill, an employment and labour lawyer at Ogletree Deakins in Montreal, following the appeal court’s interpretation of the preventive withdrawal mechanism for pregnant employees under Québec’s Act respecting occupational health and safety (OHSA).
The worker was a patrol sergeant for the Québec City Police Department, with job duties that included supervising patrol officers who respond to 911 calls and performing managerial and administrative tasks such as assessment and training.
On Dec. 23, 2020, the worker provided a medical certificate to the city indicating that she was pregnant and her working conditions – particularly those in the field – posed physical dangers to the worker and her unborn child. The city removed her from work the same day.
On Jan. 8, 2021, the worker requested reassignment to other duties during her pregnancy, saying that as a manager, there were tasks she could perform that were safe for her. She maintained that pregnant employees should have access to alternative assignments to allow them to continue advancing their careers.
Safe work for pregnant worker
At a labour relations committee meeting on Jan. 13, the Québec City Police Brotherhood – the police union - proposed assigning female officers on preventive leave to light duty, assessed on a case-by-case basis. Five days later, a manager wrote to the worker saying there was full-time work for additional resources and she could perform administrative tasks with agreement from the union.
However, on Feb. 8, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) – the government body overseeing labour standards, pay equity, and occupational health and safety in Québec - confirmed that the worker was eligible for the “For a Safe Maternity Program” (PSMD) with income replacement benefits running from Dec. 28, 2020, to July 17, 2021. The PSMD expressly provides that reassignment isn’t an obligation and the employer may opt for preventive withdrawal - although it states that it’s possible to allow a mother to continue her work while protecting her and her child’s health, and if modification or reassignment of tasks is impossible, then the worker has the right to temporarily stop work.
The city refused to reassign the worker after she was approved for the PSMD.
On February 10, the worker filed a complaint under s. 227 of the OHSA, alleging reprisals and discrimination following the city’s refusal to reassign her after she exercised a right under the OHSA.
The city contended that it didn’t have an obligation to seek reassignment for the worker, noting that ss. 40 and 41 of the OHSA only state that an employee “may request” reassignment and “may stop working” if no reassignment is offered.
Preventive withdrawal from work
The CNESST found that the worker’s complaint was inadmissible, and the city had fulfilled its obligations under the OHSA by removing the worker from work, despite the fact that the income replacement benefits had a maximum that was less than the worker’s salary, causing her significant financial consequences.
The worker appealed to Québec’s Administrative Labour Tribunal (ALT), which upheld the CNESST’s decision and found that the preventive withdrawal scheme under the OHSA provided only for immediate withdrawal from hazardous duties, not a right to reassignment. The city’s refusal to reassign the worker wasn’t a sanction or discriminatory measure, said the ALT, adding that the legislative framework was based on protecting pregnant or breastfeeding workers through work stoppage if reassignment was unavailable.
The worker took her case to the Quebec Superior Court, which ruled on Feb. 29, 2024, that the ALT’s decision was unreasonable, particularly in light of the Supreme Court of Canada’s decision in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 – which found that the rights under the OHSA “were designed to allow pregnant workers to continue working or, if no other safe work is available, to ensure that they are not financially penalized” and to counter discriminatory assumptions about pregnant women’s ability to work. The court found that the ALT had adopted an overly restrictive interpretation of ss. 40 and 41 of the OHSA and failed to analyze the city’s reasons for denying reassignment.
According to the court, the OHSA grants workers the right to request reassignment to safe duties, and while this doesn’t impose an “obligation of result” on employers, it does create “an obligation of means.” Preventive withdrawal should occur only when reassignment isn’t possible, said the court, noting that the OHSA’s purpose is to keep workers safely employed where feasible, rather than immediately removing them from the workplace. As a result, the court found that the ALT erred in not determining whether the city had an obligation to verify if a safe job was available for the worker and, if so, did it have an obligation to assign the worker to that position.
Occupational Health and Safety Act
The Court of Appeal upheld the lower court’s reasoning, noting that the ALT’s interpretation didn’t align with the OHSA’s legislative intent or the Supreme Court’s guidance in Dionne, which frames reassignment as the primary recourse and preventive withdrawal as subsidiary. The court also affirmed that the CNESST’s PSMD requires employers to take reasonable steps to identify safe reassignment options.
The obligation on employers to find safe work options for pregnant employees under the OHSA is analogous to the duty to accommodate, according to MacNeill.
“There are cases out of Ontario and other jurisdictions, which were decided under human rights laws, where employers have been found to have acted too quickly in removing a pregnant worker from employment instead of permitting them to continue in their regular job or transferring them to alternative safe duties,” he says.
The appeal court determined that the worker’s complaint under s. 227 of the OHSA must be assessed on its merits, focusing on whether the city’s refusal constituted a discriminatory measure or reprisal. It found no error in the Superior Court’s application of the reasonableness standard, dismissing the city’s appeal with legal costs. As a result, the matter was remitted back to the ALT.
The Court of Appeal’s decision demonstrates that the preventive withdrawal mechanism in Québec’s OHSA is intended to keep workers on the job when it can be done safely, says MacNeill, adding that this follows the “preventive, worker-retention focus of the OHSA.”
“Preventive withdrawal is not the automatic, default solution when a pregnant employee faces workplace hazards,” he says. “The employer must first try to find suitable, hazard-free work, and must be prepared to justify its conclusion if no such work exists.”
“Québec employers may want to revisit their maternity accommodation protocols, ensuring robust reassignment searches, meticulous records, and transparent communication - well before the next request for reassignment is brought to their attention,” adds MacNeill.
