Advisory Circulars

Commercial & Business Aviation

OVERVIEW OF THE AMENDMENTS TO
PART II OF THE CANADA LABOUR CODE

Subject:  13. Pregnant and Nursing Employees (section 132)

AMENDED CODE EXPLANATION/APPLICATION
132.(1) In addition to the rights conferred by section 128 and subject to this section, an employee who is pregnant or nursing may cease to perform her job if she believes that, by reason of the pregnancy or nursing, continuing any of her current job functions may pose a risk to her health or to that of the foetus or child. On being informed of the cessation, the employer, with the consent of the employee, shall notify the work place committee or the health and safety representative. In addition to the right to refuse dangerous work, a pregnant or nursing employee enjoys rights under the amended Code to protect herself, the foetus or child against any hazards that could affect their health and safety. When she becomes aware that she is pregnant and feels that her health, or the health of her foetus is at risk, the employee must inform her employer of her wish to cease to perform her job.
(2) The employee must consult with a qualified medical practitioner, as defined in section 166, of her choice as soon as possible to establish whether continuing any of her current job functions poses a risk to her health or to that of the foetus or child. The employee must consult a physician as soon as possible to determine whether or not there is a risk to the employee, foetus or child. Section 166 of the Canada Labour Code, Part III, defines a qualified medical practitioner as qualified to practice medicine under the laws of a province. The intent is to minimize the time during which the employee ceases to perform her regular duties while the possible risk is investigated.
(3) Without prejudice to any other right conferred by this Act, by a collective agreement or other agreement or by any terms and conditions of employment, once the medical practitioner has established whether there is a risk as described in subsection (1), the employee may no longer cease to perform her job under subsection (1). This provision prohibits a pregnant or nursing employee from continuing to withdraw from work once a medical practitioner has established that a risk does not exist. If the medical practitioner has established that there is a risk, and has provided a medical certificate, the employee can no longer withdraw from her work under this section. She must now refer to other provisions or other legislations, or the relevant collective agreement. This provision provides protection to employees for a period that was previously not covered in the legislation. It is understood that if it is established that a risk exists, the employee could then benefit from other provisions, such as rights provided in a collective agreement or maternity-related protective reassignment and leave in Part III of the Code.
(4) For the period during which the employee does not perform her job under subsection (1), the employer may, in consultation with the employee, reassign her to another job that would not pose a risk to her health or to that of the foetus or child. This provision provides flexibility for the employer to reassign a pregnant or nursing employee who has withdrawn from work. The reassignment provision is to cover the period between the time the employee withdraws until she obtains a medical opinion attesting to any risk.
(5) The employee, whether or not she has been reassigned to another job, is deemed to continue to hold the job that she held at the time she ceased to perform her job functions and shall continue to receive the wages and benefits that are attached to that job for the period during which she does not perform the job. This provision protects an employee from suffering financial or other penalty, for exercising this right relating to her health or that of the foetus or child.
 
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