The Supreme Court of Canada in Dionne v. Commission
scolaire des Patriotes,  SCC 33 (CanLII) recently upheld
an appeal from the Quebec Court of Appeal regarding the withdrawal
from duties of a pregnant occasional teacher concerned about
contracting 5th disease.
This case arose from a pregnant supply teacher withdrawing from
the workplace because of risks associated with
5th disease. Pursuant to Quebec's
occupational health and safety legislation, a pregnant worker can
refuse to perform her duties if there is a safety risk to her or
her fetus. Upon withdrawal, the employee is entitled to be
reassigned, and if the employer is not capable of reassignment, the
employee is entitled to access a fund that provides 100% of the
employee's wages for the first 5 days and 90% of the
employee's wages thereafter. This fund receives
contributions from employers in Quebec.
In order to be eligible, the pregnant employee must provide a
certificate from her doctor confirming that the workplace poses a
risk to her health or the health of the fetus. In the present
case, the certificate provided by the supply teacher identified
5th disease and rubella as potentially harmful to
her and/or the fetus if she attended the workplace. Because
students are carriers of these two viruses, classroom assignments
could place the supply teacher and the fetus she was carrying at
risk of contracting one or both of them.
The supply teacher accepted an occasional position on November
13, 2006 and then refused the assignment. The school board
was not able to reassign the supply teacher from the occasional
work refused and so the supply teacher accessed the legislated
fund.This decision to provide her with access to the fund was
appealed by the school board to the Commission des lesions
professionnelles (CLP), which found that because the supply teacher
did not attend the school for work before her refusal there was no
contract of employment created pursuant to the legislation.
This decision was judicially reviewed and upheld and further
appealed to the Court of Appeal and upheld.
The Supreme Court of Canada allowed the appeal finding that a
contract of employment had been created, thus enabling the supply
teacher to access the fund because no alternative assignment was
available, the Court held that: "A contract was formed on
November 13, 2006 when Ms. Dionne accepted the School Board's
offer to supply teach and therefore became a 'worker' in
accordance with the definition in s.1 of
the Act. Her pregnancy was not an incapacity
that prevented her from performing the work, it was the dangerous
workplace, and that in turn triggered her statutory right to
substitute that work with a safe task or withdraw."
Fifth disease, or Parvovirus B-19, is a contagious virus that is
harmful to a fetus. The virus can be spread by groups of children
and so classrooms pose a particular risk to pregnant women who do
not have antibodies from contracting the virus. There is
currently no vaccination for 5th disease.
Another complicating factor is that the disease is contagious often
without symptoms and therefore, it is not always possible to know
if children are contagious.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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