Summary of applicable principles
Section 32 of the Act respecting Occupation Health and Safety CQLR c S-2.1 (the “AOHS”), stipulates that a worker who provides his employer with a medical certificate attesting that his being exposed to a contaminant entails danger to him (in view of the fact that his health shows signs of deterioration) the worker may ask to be reassigned to other tasks that do not involve exposure to the contaminant at issue.
To benefit from any such reassignment, the worker shall demonstrate on a balance of probabilities that this exposure represents a risk for him. Once this demonstration is made, he may be reassigned to another job posting where he is no longer exposed to the contaminant, provided he is reasonably capable of fulfilling the job duties of the designated position. If reassignment is not possible, there may be a possibility for preventive withdrawal from the workplace, with payment of an income replacement indemnity.
The facts
The employee holds a position as an educator in an early childhood centre. He suffers from peripheral psoriatic arthritis, which requires taking medication that makes him immunosuppressed. He cannot accomplish his tasks in full compliance with health guidelines currently in force (particularly with respect to safe distancing) since he takes care of children between 18 months and 4 years of age and has to handle their clothing, hygiene, cleanliness etc.
Since he is immunosuppressed by virtue of his medication, he is more at risk of developing serious complications if he contracts COVID-19. He is therefore seeking authorization to elect for a preventive reassignment pursuant to section 32 AOHS, as he cannot be reassigned to another position that doesn’t involve exposure to these other dangers.
The decision
The Tribunal administratif du travail (the “TAT”) firstly recognized that the employee was clearly suffering from a chronic arthritic disease. The TAT also ruled that the balance of the evidence demonstrated that the work as a child educator exposed him to a contaminant as defined by the AOHT, i.e., the SARS-CoV-2 variant, which causes COVID.
The TAT ruled nevertheless that the exposition to the contaminant did not represent a danger for the employee and that he could not consequently be entitled to preventive reassignment.
In fact, although the medical literature submitted for consideration disclosed that persons suffering from arthritic disease have a higher risk of contracting COVID-19 than the general public, they do not face a higher risk of hospitalization and complications or death caused by the virus than the general public.
The TAT added that the preventive reassignment provided for at section 32 AOHT does not apply where a person has a higher risk of contracting COVID-19. This section applies rather where the person affected has a higher probability of developing serious complications due to contracting the virus (compared to the population at large).
In the case of this educator, the TAT concluded thus that the special condition that he raised in order to benefit from a preventive reassignment did not constitute a danger as contemplated by section 32 AOHT.
Mainguy v. CPE Petits Murmures (T.A.T. 2021-04-23) 2021 QCTAT 2007, SOQUIJ AX-521761932, 2021 EXPT-958
