Contesting a reassignment
The employer may offer a reassignment at any time during the worker’s pregnancy or while she is breastfeeding.
A pregnant or breastfeeding worker may contest the proposed reassignment if it is dangerous for her unborn or breastfed child or for her because of her pregnancy. The worker may also contest the reassignment if she is unable to perform the duties required in the reassignment.
If the worker disagrees with the proposed duties, she is invited to discuss them directly with her employer. They are in the best position to assess the duties based on the recommendations made.
The worker may ask the establishment's health and safety committee (in French only) or health and safety representative, where applicable, to examine her reassignment. They may consult the physician in charge of health services in the establishment or the public health director of the region where the establishment is located to respond to the worker's request.
If there is no health and safety committee or health and safety representative, the worker may submit her request directly to the CNESST. The worker may contest the reassignment in writing with the CNESST, specifying the reason for doing so and that the hazards listed in the certificate are still present. If she already has a file open at the CNESST, she can do so through MonEspace CNESST. The worker could also file a complaint or a report about a hazardous situation.
The CNESST will render a decision within 20 days of receipt of the contestation.
Reasons for contesting the reassignment
The hazards identified must be described in the protocol (in French only) or in the medical-environmental report. These hazards are the reason why the Reassignment or preventive withdrawal certificate for a pregnant or breastfeeding worker (in French only) was issued to the worker.
- If the reassignment involves the same hazards
A worker may contest a reassignment if the position or the duties assigned to her in her reassignment involve the same hazards as those described in the protocol or in the medical-environmental report.
- If the reassignment involves new hazards
If the worker believes that the proposed reassignment involves new hazards, she must obtain a new certificate and give it to her employer. If the hazards described in the second certificate are still present, she may contest the reassignment.
- If the worker is unable to perform the duties in the position she has been reassigned to
- The worker may contest the reassignment if she believes that she is not reasonably able to perform the duties in the position she has been reassigned to, for example if she considers that she does not have the necessary physical ability, training or skills to perform the tasks.
After contesting the reassignment
After contesting the reassignment with the CNESST, the worker may remain in the position she has been reassigned to or stop working.
If she stops working, she may be entitled to an income replacement indemnity only after the CNESST has rendered its decision on the contestation of the reassignment and if the worker meets the requirements. Payment of the indemnity will be retroactive if the decision confirms that the position she has been reassigned to involves the same hazards.
The worker has 10 days to contest the CNESST's decision if she disagrees with it. She must file an application for an administrative review.
If the worker would like to contest the decision rendered following the administrative review, she has 10 days to file her application with the Tribunal administratif du Travail.