Reasonably practicable - Maternity and work-related illness/injury - IPG-057

Effective date: September 10, 1993

Revised date: January 9, 2023

Subject

Guidelines for applying the term "Reasonably Practicable". This term appears in subsections 205(1), (3) and (4) Maternity-related reassignment and leave, and subsection 239.1(3) Work-related illness and injury.

Issue

The following new provisions have been included in the changes to the Canada Labour Code(Code), part III:

maternity-related reassignment and leave - section 205. This provision applies to all employees (includes persons often referred to as “interns”). Parts of this provision also applies to student interns
return to work, subsection 239.1(3). This provision applies to all employees and student interns

Background

There is a need to communicate a national approach in interpreting and applying the term "Reasonably Practicable".

Reassignment and job modification are provided for in section 204 which states:

"(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 the employer to modify her job functions or reassign her to another job if, 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.

(2) An employee's request under subsection (1) must be accompanied by a certificate from a health care practitioner of the employee's choice indicating the expected duration of the potential risk and the activities or conditions to avoid in order to eliminate the risk."

The employer's obligations are provided for in section 205 which states:

"(1) An employer to whom a request has been made under subsection 204(1) shall examine the request in consultation with the employee and, where reasonably practicable, shall modify the employee's job functions or reassign her.

(3) The onus is on the employer to show that a modification of job functions or a reassignment that would avoid the activities or conditions indicated in the certificate issued under subsection 204(2) is not reasonably practicable.

(4) If the employer concludes that a modification of job functions or a reassignment that would avoid the activities or conditions indicated in the certificate is not reasonably practicable, the employer shall inform the employee in writing."

Return to Work is provided for in subsection 239.1(3) which states:

"(3) Subject to the regulations, the employer shall, where reasonably practicable, return an employee to work after the employee's absence due to work-related illness or injury."

The above provisions apply to student interns undertaking internships to fulfill the requirements of their educational program. The only exception is if a health care practitioner issues a certificate stating that a student intern is unable to continue performing internship activities, or if the employer informs the student intern in writing that a proposed modification or reassignment is not “Reasonably Practicable”. In such case, it is at the discretion of the employer to give the student intern a leave of absence until they are able to resume their internship.

Interpretation

What "Reasonably Practicable" means
The criteria to determine whether:
- a job modification or reassignment is not reasonably practicable under subsection 205(3), and
- a return to work after a work-related illness or injury is not reasonably practicable pursuant to subsection 239.1(3)
The distinction between the use of the terms "Reasonably Practicable" under the Code and "Reasonable Accommodation" in connection with the Canadian Human Rights Act

Black's Law Dictionary defines the word practicable "that which is performable, feasible, possible". The synonyms "rational", "equitable", "fair" and "suitable" are suggested for the word reasonable. These relative terms indicate that factors other than the ability to produce a given result may be considered when a decision concerning what is "Reasonably Practicable" is taken. Thus, while practicable implies that which is feasible, the term "Reasonably Practicable" limits the precautions to be taken to those that are not only possible but that are also suitable or rational, given the particular situation.

Determining what is “Reasonably Practicable” should be done on a case-by-case basis. What constitutes a “Reasonably Practicable” measure in one case may not be sufficient to meet the obligation in another

Criteria to be considered include:

The feasibility of complying - will it have an effect on the existing work structure?
Is compliance reasonable - to what degree will it have an effect on other existing jobs or positions?
The impact of compliance - will it cause undue hardship? Are significant costs involved? Will it require the creation of work or a new job position? Will it result in financial cost? Will it disrupt co-workers or arrangements established under collective agreements?
The degree of risk - will the effort involved, in time and cost, significantly outweigh the benefit?

The concepts of "Reasonably Practicable" and "Reasonable Accommodation" have different applications. Measures which fulfill a duty to accommodate will not necessarily be proof that all reasonably practicable measures have been taken.

There is an important distinction to make between the two. The term "Reasonably Practicable" is most often used to qualify an employer's obligation in a particular situation. The concept of reasonable accommodation is not an obligation. It is rather a defence that may be invoked once an employer is found to have enforced a policy with discriminatory effects. In addition, an obligation to do what is “Reasonably Practicable” is a proactive duty, which is owed to a class of individuals.

In summary, the term "Reasonably Practicable" affords the employer a certain flexibility in determining what, under the circumstances, is necessary to measure up to the statutory standard. The employer must weigh the reasonableness of the effort, time and cost of:

modifying
re-assigning (a nursing or pregnant employee or, where applicable, a student intern), or
returning to work (an injured worker) against the benefits

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Date modified:: 2023-08-15

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