Canada–Nova Scotia Offshore Petroleum Resources Accord Implementation and Offshore Renewable Energy Management Act (S.C. 1988, c. 28)

Marginal note:Reassignment and job modification

• 210.057 (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 210.056(3)(a).

Marginal note:Employer’s obligations

• 210.058 (1) An employer to whom a request has been made under subsection 210.057(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 210.057(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 210.057(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.

Reprisals and Complaints

Definition of reprisal action

• 210.059 (1) In this section and in sections 210.06 and 210.063, reprisal action means an action that

  • (a) adversely affects an employee with respect to their terms or conditions of employment or any opportunity for employment or promotion, including dismissal, lay-off, suspension, demotion, transfer of job or location, discontinuation or elimination of the job, change in hours of work, reduction in wages or benefits, coercion, intimidation or the imposition of any disciplinary sanction, reprimand or other penalty; and

  • (b) is taken, in whole or in part, because the employee has acted in accordance with the provisions of this Part or of the regulations made under this Part or with a decision or order made under any of those provisions or has taken steps to ensure that those provisions are complied with.

• Marginal note:Prohibition

  (2) No operator, employer, provider of services or union shall take, or threaten to take, reprisal action against an employee.

• Marginal note:No action against employee

  (3) Without limiting the generality of subsection (2), actions referred to in paragraph (1)(a) cannot be taken against an employee for

  • (a) seeking to establish a committee, participating in the establishment or work of a committee or acting as a member of a committee or as a coordinator;

  • (b) acting as an observer under section 210.048;

  • (c) making a report under section 210.049;

  • (d) refusing to perform an activity under section 210.05, refusing to be transported under section 210.054 or ceasing to perform a job under section 210.056;

  • (e) requesting the employer under section 210.057 to modify the functions connected with the employee’s regular work or to reassign the employee;

  • (f) seeking access to information to which the employee is entitled under this Part;

  • (g) testifying in any proceeding or inquiry under this Part; or

  • (h) giving information in accordance with the provisions of this Part or of the regulations made under this Part or with a decision or order made under any of those provisions to a committee, a coordinator, a health and safety officer or any other person having duties or functions under this Part, or under Part III as it relates to safety.

• Marginal note:Disciplinary action

  (4) Despite paragraph (3)(d), any action referred to in paragraph (1)(a) may be taken against an employee who has exercised rights under section 210.05 or 210.054 after all avenues of redress have been exhausted by the employee, if the operator, employer, provider of services or union taking the action can demonstrate that the employee has wilfully abused those rights.

• Marginal note:Reasons

  (5) The operator, employer, provider of services or union shall provide the employee with written reasons for any action taken under subsection (4) within 15 days after the day on which a request is received from the employee to do so.

Marginal note:Complaints

• 210.06 (1) An employee may, either personally or through a representative, make a complaint in writing to an occupational health and safety officer that

  • (a) an employer or provider of services has failed to pay wages or grant benefits to the employee that are required under subsection 210.019(2), 210.044(4), 210.045(7), 210.048(6), 210.051(2), 210.052(2) or (3), 210.053(1) or (2), 210.055(2) or (3), 210.056(6) or 210.058(2) or (5); or

  • (b) an operator, employer, provider of services or union has taken or threatened to take reprisal action against the employee contrary to subsection 210.059(2).

• Marginal note:Time limit

  (2) The complaint shall be made within 90 days after the day on which the grounds for the complaint became known or ought to have become known to the employee.

• Marginal note:Burden of proof

  (3) On an enquiry into a complaint under paragraph (1)(b), the burden of proving that no reprisal action has been taken or threatened is on the operator, employer, provider of services or union against whom the complaint is made.

• Marginal note:Grievance under collective agreement

  (4) An employee who is aggrieved by a subject-matter described in paragraph (1)(a) or (b) should, if the employee is bound by a collective agreement that provides for final and binding arbitration of grievances in respect of the subject-matter, present a grievance under the agreement.

• Marginal note:Exercise of rights

  (5) An employee who exercises their right within the time permitted under the collective agreement is not permitted to make a complaint under subsection (1) in respect of the same subject-matter unless it is determined that the arbitrator does not have jurisdiction to hear the grievance. In that case, the employee may, within 90 days after the day on which a final determination is made that the arbitrator does not have jurisdiction, make an application under that subsection.

Marginal note:Enquiry into complaint

• 210.061 (1) If a complaint is made to an occupational health and safety officer, the officer shall enquire into it and decide if it is justified.

• Marginal note:Enquiry on own initiative

  (2) An occupational health and safety officer may carry out an enquiry on their own initiative if the officer is of the opinion, based on information that the officer considers to be reliable, that grounds for a complaint under section 210.06 exist.

Marginal note:Notice of decision

210.062 If, after carrying out their enquiry, the occupational health and safety officer decides that a complaint is not justified or that no grounds for a complaint exist, they shall immediately give notice of the decision to the operator and the complainant, as well as to the employer, provider of services or union that is the subject of the complaint.

Marginal note:Order to pay wages or grant benefits

• 210.063 (1) If the occupational health and safety officer decides that an employer or a provider of services that is providing services related to the placement of an employee has failed to pay wages or grant benefits to the employee that are required under this Part, they may order the employer or provider of services, as the case may be, subject to any terms and conditions that they consider appropriate,

  • (a) to pay those wages or grant those benefits; and

  • (b) to take any other measure necessary to remedy the matter.

• Marginal note:Order in case of reprisal action

  (2) If the occupational health and safety officer decides that an operator, employer, provider of services or union has taken reprisal action contrary to subsection 210.059(2), they may, subject to any terms and conditions that they consider appropriate, order

  • (a) the reinstatement of an employee on the same terms and conditions under which the employee was employed immediately before the reprisal action;

  • (b) the payment or the granting to an employee, by the employer or provider of services of any wages or benefits that the employee would have been entitled to but for the reprisal action;

  • (c) the removal of any reprimand or other references to the matter from the records of any operator, employer or provider of services;

  • (d) the reinstatement of an employee to a union if the employee has been expelled by the union; and

  • (e) the taking by the operator, employer, provider of services or union of any other measure necessary to remedy the matter.

• Marginal note:Order in case of threat of reprisal action

  (3) If the occupational health and safety officer decides that an operator, employer, provider of services or union has threatened to take reprisal action contrary to subsection 210.059(2), they shall order it not to take that action.

• Marginal note:Order to specify breach

  (4) An order made under this section shall specify the provisions of this Part or of the regulations made under this Part that have not been complied with or the nature of any reprisal action taken or threatened to be taken contrary to subsection 210.059(2), as the case may be.

Marginal note:Application by employer or provider of services

• 210.064 (1) An employer or a provider of services may apply in writing to an occupational health and safety officer for a determination as to whether

  • (a) an employee has received wages and benefits under subsection 210.052(3) knowing that no circumstances existed that would warrant the employee’s refusal, under section 210.05, to perform an activity; or

  • (b) an employee has received wages and benefits under subsection 210.055(3) knowing that no circumstances existed that would warrant the employee’s refusal, under section 210.054 to be transported.

• Marginal note:Time limit

  (2) The application shall be made within 30 days after all avenues of redress have been exhausted by the employee.

• Marginal note:Burden of proof

  (3) The burden of proving that no circumstances existed that would warrant the refusal by the employee is on the employer or the provider of services.

Marginal note:Notice of decision

210.065 If an occupational health and safety officer dismisses an application made under subsection 210.064(1), the officer shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employee who is the subject of the application.

Marginal note:Notice of decision

210.066 If an occupational health and safety officer determines that an employee has received wages and benefits under subsection 210.052(3) or 210.055(3) knowing that no circumstances existed that would warrant the refusal by the employee under section 210.05 to perform an activity, or the refusal by the employee under section 210.054 to be transported, as the case may be, the officer shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employee who is the subject of the application.

Activities of Regulator

Marginal note:Research, studies and programs

• 210.067 (1) The Regulator may, for the purposes of this Part,

  • (a) undertake research into the causes of and the means of preventing or reducing occupational injury and illness;

  • (b) cause studies to be made into occupational health and safety;

  • (c) publish the results of the research or studies;

  • (d) compile, prepare and disseminate information related to occupational health and safety obtained from the research and studies;

  • (e) implement programs to prevent or reduce occupational injury and illness; and

  • (f) implement — in accordance with the regulations, if any — programs for medical monitoring and examination related to occupational health and safety, request any employer to do so or appoint any medical practitioner qualified in occupational medicine to do so.

• Marginal note:Consent for medical monitoring or examination

  (2) For the purposes of paragraph (1)(f), medical monitoring or examination of an employee may be conducted only with the employee’s written consent.

• Marginal note:Cooperation with governments, etc.

  (3) The Regulator may carry out the activities described in paragraphs (1)(a), (e) and (f) in conjunction with any department or agency of the Government of Canada, the government of any province or a foreign government, or with any other organization that carries out similar activities.

Marginal note:Guidelines and interpretation notes

• 210.068 (1) The Regulator may issue and publish, in any manner that it considers appropriate, guidelines and interpretation notes with respect to the application and administration of this Part.

• Marginal note:Not statutory instruments

  (2) The guidelines and interpretation notes are not statutory instruments for the purposes of the Statutory Instruments Act.