Canada–Newfoundland and Labrador Atlantic Accord Implementation Act (S.C. 1987, c. 3)

Right to Refuse

Marginal note:Refusal to perform activity

• 205.05 (1) Subject to subsection (2), an employee may refuse to perform an activity at a workplace if they have reasonable cause to believe that the performance of the activity constitutes a danger to themselves or another individual.

• Marginal note:Circumstances when refusal not permitted

  (2) An employee is not permitted to refuse to perform an activity if the refusal puts the life, health or safety of another individual directly in danger.

• Marginal note:Report to supervisor

  (3) An employee who refuses to perform an activity shall immediately report the circumstances of the matter to their supervisor.

• Marginal note:Action by supervisor

  (4) The supervisor shall immediately take action to try to resolve the matter. If the supervisor believes that a danger exists, they shall immediately take any action that is necessary to protect any individual from the danger and to inform the workplace committee or the coordinator, as the case may be, the operator and the employee’s employer of the matter. If the supervisor does not believe that a danger exists, they shall so notify the employee.

• Marginal note:Report to employer, etc.

  (5) If the employee continues to refuse to perform the activity, they shall immediately notify their employer and the workplace committee or the coordinator, as the case may be, and the employer shall in turn notify the operator and any provider of services that is providing services related to the placement of that employee.

• Marginal note:Report to occupational health and safety officer

  (6) Immediately after being notified under subsection (5), the operator shall notify an occupational health and safety officer of the continued refusal of the employee to perform the activity and of any remedial action taken.

• Marginal note:Recommendations of committee or coordinator

  (7) The workplace committee or the coordinator, as the case may be, may make any recommendations that they consider appropriate to the employee, the employee’s employer, the operator and any provider of services that is providing services related to the placement of that employee.

• Marginal note:Enquiry and decision

  (8) The occupational health and safety officer shall, if the employee continues to refuse to perform the activity, enquire into the matter, taking into account the recommendations, if any, made by the workplace committee or the coordinator. The officer shall give to the employee, the employee’s employer, the operator and any provider of services that is providing services related to the placement of that employee, and to the workplace committee or the coordinator, as the case may be, a written notification of their decision on the matter.

• Marginal note:Dangerous situation — order

  (9) If the occupational health and safety officer decides that the performance of the activity constitutes a danger to the employee or another individual, the officer shall make any order under subsection 205.093(1) or (2) that the officer considers appropriate, and the employee may continue to refuse to perform the activity until the order is complied with or until it is varied or revoked under this Part.

• Marginal note:No right to refuse

  (10) If the occupational health and safety officer decides that the performance of the activity does not constitute a danger to the employee or another individual, or that the refusal puts the life, health or safety of another individual directly in danger, the employee is not entitled under this section to continue to refuse to perform the activity.

Marginal note:Opportunity to explain reasons for refusal

• 205.051 (1) An employee who refuses under section 205.05 to perform an activity may accompany an occupational health and safety officer when the officer is enquiring into the matter under subsection 205.05(8), for the purpose of explaining the reasons for the employee’s refusal.

• Marginal note:Compensation of employee

  (2) An employee who, under subsection (1), accompanies an occupational health and safety officer shall, during that time, be paid the same wages and granted the same benefits that the employee would have received if they had not exercised their right to refuse.

Marginal note:Assignment of equivalent work

• 205.052 (1) Subject to any applicable collective agreement or other agreement, if an employee refuses under section 205.05 to perform an activity, the employer may assign reasonably equivalent work to the employee until the employee, by virtue of subsection 205.05(9) or (10), is no longer permitted to refuse to perform the activity.

• Marginal note:Compensation during assignment

  (2) If the employee is assigned reasonably equivalent work, the employer, or the provider of services that is providing services related to the placement of the employee, as the case may be, shall pay them the same wages and grant them the same benefits that they would have received had they not refused to perform the activity.

• Marginal note:Compensation if no assignment

  (3) If the employee is not assigned reasonably equivalent work, the employer, or the provider of services that is providing services related to the placement of the employee, as the case may be, shall, until the employee, by virtue of subsection 205.05(9) or (10) is no longer permitted to refuse to perform the activity, pay the employee the same wages and grant the employee the same benefits that they would have received had they not refused to perform the activity.

• Marginal note:No compensation if refusal of equivalent work

  (4) Subject to any applicable collective agreement or other agreement, if the employee refuses an assignment of reasonably equivalent work, they are not entitled to receive any wages or benefits.

• Marginal note:Other employees

  (5) For as long as the employee continues to exercise their right to refuse to perform an activity, another employee shall not be assigned to perform the activity unless the employer has advised that other employee of the refusal, the reasons for the refusal and the right of that other employee to refuse to perform the activity.

• Marginal note:Repayment

  (6) Subject to any applicable collective agreement or other agreement, the employer, or the provider of services that is providing services related to the placement of the employee, as the case may be, may require repayment of any wages and benefits received by an employee under subsection (3) if the provincial labour relations board determines in respect of an application made under section 205.063, after all avenues of redress have been exhausted by the employee, that the employee received the wages and benefits knowing that no circumstances existed that would warrant the refusal.

Marginal note:Compensation for other employees

• 205.053 (1) Subject to any applicable collective agreement or other agreement, an employee at a workplace who is affected by a work stoppage arising from a refusal by another employee to perform an activity shall be paid the same wages and granted the same benefits that they would have received had no work stoppage occurred, until work resumes or until they return to their usual point of disembarkation on shore, whichever event occurs first.

• Marginal note:Equivalent work

  (2) Subject to any applicable collective agreement or other agreement, an employer may assign reasonably equivalent work to an employee who is affected by a work stoppage at the same wages and benefits that the employee would have received if no work stoppage had occurred.

Marginal note:Refusal to be transported

• 205.054 (1) An employee may refuse to be transported on a passenger craft if they have reasonable cause to believe that being transported on it constitutes a danger to them.

• Marginal note:Report to operator

  (2) An employee who refuses to be transported on a passenger craft shall use the contact information provided under paragraph 205.014(1)(b) to immediately report the circumstances of the matter.

• Marginal note:Notice to Chief Safety Officer or delegate

  (3) On being notified of a refusal under subsection (2), the operator shall immediately notify the Chief Safety Officer unless the Chief Safety Officer has provided other contact information for the purposes of this subsection, in which case the operator shall use that contact information to make the notification.

• Marginal note:Notice to passengers

  (4) For as long as the employee continues to exercise their right to refuse to be transported on the passenger craft, or for any longer period specified by the Chief Safety Officer, the operator shall notify all other employees and other passengers to be transported on the passenger craft, before they are transported, of the refusal, the reasons for the refusal and the right of employees to refuse to be transported.

• Marginal note:Action by operator

  (5) The operator shall immediately take action to try to resolve the matter. If the operator believes that the transportation constitutes a danger to the employee, it shall immediately take any remedial action that is necessary and inform the workplace committee established for the workplace to or from which the employee was to be transported, and an occupational health and safety officer, of the matter. If the operator does not believe that the transportation constitutes a danger to the employee, it shall so notify the employee.

• Marginal note:Report to workplace committee, etc.

  (6) If the employee continues to refuse to be transported, the operator shall immediately notify the workplace committee, the employee’s employer and an occupational health and safety officer of the continued refusal of the employee to be transported and of any remedial action taken. The employer shall in turn notify any provider of services that is providing services related to the placement of that employee.

• Marginal note:Recommendations of committee

  (7) The workplace committee may make any recommendations to the employee and the operator that it considers appropriate.

• Marginal note:Enquiry and decision

  (8) The occupational health and safety officer shall, if the employee continues to refuse to be transported, enquire into the matter, taking into account any recommendations made by the workplace committee. The occupational health and safety officer shall decide whether the transportation constitutes a danger to the employee, and shall give to the employee, the employee’s employer, the operator and the workplace committee a written notification of the decision. The employer shall in turn notify any provider of services that is providing services related to the placement of that employee.

• Marginal note:Dangerous situation — order

  (9) If the occupational health and safety officer decides that the transportation constitutes a danger to the employee, the officer shall make any order under subsection 205.093(1) or (2) that they consider appropriate, and an employee may continue to refuse to be transported until the order is complied with or until it is varied or revoked under this Part.

• Marginal note:No right to refuse

  (10) If the occupational health and safety officer decides that the transportation does not constitute a danger to the employee, the employee is not entitled to continue to refuse to be transported.

Marginal note:Assignment of equivalent work

• 205.055 (1) Subject to any applicable collective agreement or other agreement, if an employee refuses under section 205.054 to be transported, the employer may assign reasonably equivalent work to the employee until the employee, by virtue of subsection 205.054(9) or (10), is no longer permitted to refuse to be transported.

• Marginal note:Compensation during assignment

  (2) If an employee is assigned reasonably equivalent work, the employer or the provider of services that is providing services related to the placement of the employee, as the case may be, shall pay the employee the same wages and grant the employee the same benefits that they would have received had they not refused to be transported.

• Marginal note:Compensation if no assignment

  (3) If an employee has not been assigned reasonably equivalent work, the employer or the provider of services that is providing services related to the placement of the employee, as the case may be, shall, until the employee, by virtue of subsection 205.054(9) or (10), is no longer permitted to refuse to be transported, pay the employee the same wages and grant the employee the same benefits that they would have received had they not refused to be transported.

• Marginal note:No compensation if refusal of equivalent work

  (4) Subject to any applicable collective agreement or other agreement, if an employee refuses an assignment of reasonably equivalent work, the employee is not entitled to receive any wages or benefits.

• Marginal note:Repayment

  (5) Subject to any applicable collective agreement or other agreement, the employer, or the provider of services that is providing services related to the placement of the employee, as the case may be, may require repayment of any wages and benefits received by an employee under subsection (3) if the provincial labour relations board determines in respect of an application made under section 205.063, after all avenues of redress have been exhausted by the employee, that the employee received the wages and benefits knowing that no circumstances existed that would warrant the refusal.

Pregnant or Nursing Employees

Marginal note:Cessation of functions

• 205.056 (1) Without prejudice to the rights conferred by section 205.05 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 the functions connected with her regular work may pose a risk to her health or to that of her foetus or child.

• Marginal note:Notification

  (2) On being informed of the cessation, the employer, with the written consent of the employee, shall notify the workplace committee established for the employee’s workplace or the coordinator, as the case may be.

• Marginal note:Medical certificate

  (3) The employee shall provide to her employer, and any provider of services that is providing services related to her placement, as soon as possible, a certificate of a medical practitioner of her choice who is entitled to practise medicine under the laws of a province

  • (a) certifying that continuing any of the functions connected with her regular work poses a risk to her health or to that of her foetus or child and indicating the expected duration of the risk and the activities or conditions to avoid in order to eliminate the risk; or

  • (b) certifying that continuing the functions connected with her regular work does not pose a risk to her health or to that of her foetus or child.

• Marginal note:Provision no longer applicable

  (4) Without prejudice to any other right conferred by this Part, by a collective agreement, by another agreement or by any terms and conditions of employment, once the medical practitioner has established that there is a risk as described in subsection (1), the employee is no longer permitted to cease to perform her job under that subsection.

• Marginal note:Employer may reassign

  (5) 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 her foetus or child.

• Marginal note:Status of employee

  (6) Whether or not the employee has been reassigned to another job, she is deemed to continue to hold the job that she held at the time she ceased to perform her job and is to continue to receive the wages and benefits that are attached to that job for the period during which she does not perform the job.

Marginal note:Reassignment and job modification

• 205.057 (1) An employee who is pregnant or nursing may, during the period from the beginning of the pregnancy to the end of the twenty-fourth week following the birth, request that the employer modify the functions connected with her regular work or reassign her to another job if, by reason of the pregnancy or nursing, continuing any of those functions may pose a risk to her health or to that of her foetus or child.

• Marginal note:Medical certificate

  (2) The employee’s request shall be accompanied by a certificate described in paragraph 205.056(3)(a).

Marginal note:Employer’s obligations

• 205.058 (1) An employer to whom a request has been made under subsection 205.057(1) shall examine the request in consultation with the employee and, if feasible, shall modify the functions connected with her regular work or shall reassign her. The employer shall notify any provider of services that is providing services related to the placement of that employee that the request has been made.

• Marginal note:Rights of employee

  (2) An employee who has made a request under subsection 205.057(1) is entitled to continue in her current job while the employer examines her request, but, if the risk posed by continuing any of the functions connected with her regular work so requires, she is entitled to and shall be granted a leave of absence with the same wages and benefits — payable by the employer or any provider of services that is providing services related to the placement of that employee, as the case may be — that she would have received had she not been on leave of absence until the employer

  • (a) modifies the functions connected with her regular work or reassigns her; or

  • (b) informs her in writing that it is not feasible to modify the functions connected with her regular work or to reassign her.

• Marginal note:Onus of proof

  (3) The onus is on the employer to show that a modification of the functions connected with the employee’s regular work or a reassignment that would avoid the activities or conditions indicated in the medical certificate is not feasible.

• Marginal note:Employee to be informed

  (4) If the employer concludes that a modification of the functions connected with the employee’s regular work or a reassignment that would avoid the activities or conditions indicated in the medical certificate is not feasible, the employer shall so inform her in writing.

• Marginal note:Status of employee

  (5) If the functions connected with the employee’s regular work are modified or the employee is reassigned, the employee is deemed to continue to hold the job that she held at the time of making the request under subsection 205.057(1), and shall continue to receive the wages and benefits that are attached to that job.

• Marginal note:Employee’s right to leave

  (6) An employee referred to in subsection (4) is entitled to and shall be granted a leave of absence for the duration of the risk as indicated in the medical certificate.