Modification of duties for pregnant employee

Duty to change job duties if employee doesn't ask

Brian Johnston
Question: Does an employer have to modify physical duties — such as carrying heavy items — for a pregnant employee if she doesn’t request it? If she is injured doing regular duties, is the employer liable?

Answer: An employer does not incur liability for an employee injured performing her regular duties. Workers’ compensation legislation provides that if there is an accident arising out of or in the course of employment, then the employee is entitled to workers’ compensation benefits and the employee cannot sue the employer. Therefore, even if an employer violated occupational health and safety or human rights legislation and it led to an employee injury, the employer would not be liable to the employee for that workplace injury.

On the question of whether an employer has to provide modified duties for a pregnant employee, even if she does not request it, the answer is a qualified “yes.”

Generally, the duty to accommodate is triggered by an employee request. Having said that, there are some protected characteristics — such as mental disability — which an employer cannot escape accommodating, even in the absence of an employee request. The need for accommodation may be evident in the absence of the employee asking for accommodation. As one arbitrator put it, “You do not have to be a mechanic to know that your car is not working well.” An employer cannot legally hide behind the lack of an employee request for accommodation when it is obvious that accommodation is necessary. There may be many reasons why an employee may not ask for modified duties, even when accommodation is necessary. It is certainly appropriate, and perhaps necessary in some circumstances, to ask a pregnant employee if she needs accommodation with respect to arduous physical duties.

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected].

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