Does a pregnant woman have the legal right to refuse to work in an environment that is unsafe to her as a pregnant woman? In 2014 the Supreme Court of Canada answered that question with a “yes” with its decision in the case of Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 (CanLII). My summary of that case can be found in my earlier post SCC: Pregnant Women Have the Right to Refuse Unsafe Work Environments.
While the right to refuse to work in an unsafe work environment is now enshrined in law, what about payment? If a woman refuses to attend work because it may be harmful to her or her child, what is she do about money?
A Private Members bill introduced by backbench Liberal MP Mark Gerretsen, Bill C-243 (1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016) may have the answer.
As introduced, Bill C-243 would amend Canada’s Employment Insurance Act by allowing pregnant woman to access EI benefits in the period that starts up to 15 before their "intended confinement" and ends up to 17 weeks after the week in which their "confinement" is expected or commences, if they are unable to work due to potential dangers to their health or the health of their children.
What Does this Bill Mean Now?
It is important to remember that this is a private members bill, not a government bill, and even though it comes from the benches of the ruling party, it is still unlikely to get much beyond first reading.
Practically, however, Bill C-243 is a step in the right direction towards ensuring that women can afford to be away from work when they need to be without having to worry about their jobs or the bills.
As a final point, regardless of whether this law passes or whether woman have access to EI benefits, employers need to be mindful of their obligations pursuant to human rights legislation to ensure that they are not discriminating against pregnant woman in employment.
Takeaways for Employees with Labour Pains
If you are a worker in Ontario and have questions about maternity leave, have a look at my page Pregnancy Leave Questions. If you have concerns about how you are being treated, then it may be time to speak with a lawyer.
Takeaways for Employers with Labour Pains
The lesson for employers is that recognition of a woman’s right to take protected leave away from employment is expanding. While employers do not have to pay employees who are absent from work on a protected form of leave (hence the potential expansion of EI), the law does place certain other obligations on employers, of which it would be prudent to be mindful.
If you are an employer in Ontario and want to ensure that you are staying on the right side of the law when it comes to questions of maternity leave, give me a call or send me an email, I would be happy to be of service.
To reach the author of this blog, Sean Bawden, email email@example.com or call 613.238.6321 x260.
Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.