Work Refusals During COVID-19
While the world is trying to contain the impact of COVID-19, discussion in recent days and weeks about returning to work and re-opening the economy have become prominent. In Ontario, it seems that businesses will start to gradually reopen, with Premier Doug Ford announcing a "Stage 1" of easing COVID restriction.
In light of such announcements, workers may be wondering if it is safe to return to work and if they can refuse to work as a result of health and safety concerns related to COVID-19. If employers have not done so already, it would be best to keep ahead of potential work refusals and take practical steps to address this issue.
Right to Refuse Work – What’s Required?
Under the general duty clause of Ontario’s Occupational Health and Safety Act (“OHSA”) employers must take reasonable precautions to protect the health and safety of their employees. Similar duties are provided for in health and safety legislation across Canada. During (and potentially after) the COVID-19 pandemic, employers can expect workers to consider or attempt to exercise their right to refuse unsafe work based on what they may perceive to be inadequate protections against COVID-19 risk. Simply put, employers can expect that employees may claim that being required to work may involve “unsafe work”, and the employees may then engage in a work refusal.
Employees can refuse to work where an employer does not ensure a safe workplace. Ontario’s OHSA provides that there must be a “danger” to the employee and not merely a risk. However, refusing to work is a serious claim. Where such a claim is made, a Ministry of Labour Health and Safety Officer may investigate the particular facts to determine whether the employee’s work refusal is justified and appropriate. Relevant employees are not required to work while the concerns are being investigated. Where an employee refuses to work because of a perceived danger, the following steps should be followed:
The employee advises the employer that they believe the workplace is unsafe, including the reasons why.
The employer has a duty to alert relevant third parties, such as a health and safety representative or union representative, of the specific concern as presented by the employee.
The employer must proceed to investigate and determine whether the right to refuse unsafe work is supported by actual danger.
If there is a disagreement with the employer’s decision, the employee can contact a Health and Safety Officer to request a Ministry of Labour investigation.
If either the employee or employer disagree with the decision made by the Health and Safety Officer, the Officer’s decision can be appealed.
What can Employers and Employees do While Waiting for a Health and Safety Officer to Make a Decision?
Generally, employers are able to direct that another worker perform the duties which were refused and may also direct the worker refusing to do the work to perform alternative duties, at no loss in pay. An employee who has exercised their right of refusal in such situations must be paid until the matter is resolved with their employer or a decision is reached by a Health and Safety Officer. Employees must also generally remain available to do other work which the employer may require.
Practically , Health and Safety Officers are likely to be delayed with investigations because of the current pandemic. As a result, this may mean that any work refusal may not get resolved for some time. Additionally, employees should remember that if they refused to work but a Health and Safety Officer determines the workplace is safe, the employee may potentially be dismissed for cause. However, an employee who raises a legitimate concern and refuses work as a result may not be dismissed if the dismissal amounts to a reprisal. There are certainly some potentially interesting issues which may emerge as a result of the pandemic. As an important practice, employers should continue to document relevant discussions, properly and objectively, consider risks which are presented and investigated, then communicate decisions clearly to employees and any relevant representatives.
Right to Work – Exceptions
There are exceptions to an employee’s right to refuse dangerous work. First, dangers or hazards that are inherent to the work for which are normal conditions of the workers employment will generally not entitle the employee to refuse work. Second, if the right to refuse work would directly endanger the life, health or safety of another person, then this right, generally, cannot be exercised. Examples of these situations include police officers, firefighters and health care workers. Those who are tasked with sanitizing or “deep cleaning” a workplace to address potential COVID-19 should also be covered by this exception.
Practical Points for Employers
If employers are not proactive, or sufficiently reactive, to workplace dangers posed by COVID-19, they may be left facing either a brief work refusal or a total suspension of operations. Employers should take necessary precautions to prevent this from happening, limiting the number of cases in which employees may refuse to work, and consider implementing appropriate remedial measures to address employee concerns regarding workplace COVID-19 health and safety risks. The following are our recommendations for employers:
1. Be Proactive: Employers should assess the opportunities for risk and danger in the workplace in light of COVID-19 and be sure to follow any direction and recommendations by public health authorities. Some easy measures include: ensuring adequate sanitation for employees; where possible, increase distancing between workers; and having strict work from home policies for any workers who feel sick, returned from a foreign country or have been in contact with someone who has been sick or returned from a foreign country. Finally, employers should communicate with workers regarding the measures taken to protect their health and safety at work and any changes or updates to those measures.
2. Address Employee Refusals Quickly, Directly and Thoroughly: Take employee concerns seriously and try to resolve them. If a matter escalates, the Ministry of Labour may be brought in to investigate, which may disrupt business operations. Employers should be diligent about keeping adequate records to detail each employee concern that gives rise, or may give rise, to a work refusal as well as the employer’s investigative and remedial efforts done to address any concerns
3. Monitor COVID-19 Risk and Respond Appropriately: Employers should consistently monitor public health guidelines and directives to assess the COVID-19 risks. If the pandemic escalates, employers may wish to take additional precautions including providing workers with masks, modifying working hours and shifts to practice social distancing and increasing the frequency with which the workplace is cleaned.
The current pandemic is presenting unique challenges for employers whose businesses remain open or will soon reopen. Being mindful of your obligations under the OHSA and taking proactive measures to show your workers that their safety is a foremost priority can help employers reduce the chances of facing a work refusal and, with it, an untimely disruption to their business and operations.
If you have any questions about the impact of COVID-19 on your workforce or your employment, please contact George Waggott at firstname.lastname@example.org or Sam Presvelos at email@example.com.