The Right to Refuse in a COVID-19 World

In view of the fact that the Ontario government has declared a state of emergency under the under section 7.0.1(1) of theEmergency Management and Civil Protection Act and passed O. Reg. 82/30 declaring certain businesses essential, I thought it might be a good time to review the right to refuse provisions under the Occupational Health and Safety Act (“OHSA”). 

At the cornerstone of the OHSA is the internal responsibility system which is based on the principle that the workplace parties themselves (the employer, the employee and the union, in a unionized workplace) are in the best position to identify and solve health and safety problems.   As somewhat of an overstatement, it is only when they are unable to sort out their health and safety issues that they turn to the Ministry of Labour. 

The right to refuse (along with the right to participate and the right to know) is a fundamental principle of our OHSA.  But it is somewhat misunderstood and, in the context of COVID-19 is worth considering.

When can a worker refuse?

Section 43(3) provides that a worker may refuse to work or do particular work where he or she has reason to believe that,

(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself;

(b.1) workplace violence is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.

So, before a worker can refuse under the OHSA, he or she must have reason to believe that (something) is likely to endanger himself, herself or, possibly, another worker.

Do all workers have a right to refuse under the OHSA?

Most workers in Ontario can invoke the work refusal provisions in the OHSA. 

There are certain categories or classes of workers who have a limited right to refuse under the OHSA.  Determining who has a limited right to refuse involves a two-step process.

The first step involves determining if the particular worker falls into any of the following categories:

(a) a person employed in, or a member of, a police force to which the Police Services Act applies;

(b) a firefighter as defined in subsection 1 (1) of the Fire Protection and Prevention Act, 1997;

(c) a person employed in the operation of,

(i) a correctional institution or facility,

(ii) a place of secure custody designated under section 24.1 of the Young Offenders Act (Canada), whether in accordance with section 88 of the Youth Criminal Justice Act (Canada) or otherwise,

(iii) a place of temporary detention under the Youth Criminal Justice Act (Canada), or

(iv) a similar institution, facility or place;

(d) a person employed in the operation of,

(i) a hospital, sanatorium, long-term care home, psychiatric institution, mental health centre or rehabilitation facility,

(ii) a residential group home or other facility for persons with behavioural or emotional problems or a physical, mental or developmental disability,

(iii) an ambulance service or a first aid clinic or station,

(iv) a laboratory operated by the Crown or licensed under the Laboratory and Specimen Collection Centre Licensing Act, or

(v) a laundry, food service, power plant or technical service or facility used in conjunction with an institution, facility or service described in sub-clause (i) to (iv). 

Once we determine that the worker falls into one of the above categories, the second step in the analysis is based on a consideration of the work and activities performed by the exempt worker.  The right to refuse does not apply:

(a) when a circumstance described in section 43(3)(a), (b), (b.1) or (c) as set out above are inherent in the worker’s work or is a normal condition of the worker’s employment; or

(b) when the worker’s refusal to work would directly endanger the life, health or safety of another person. 

Accordingly, the above employees do not have an unconditional right to refuse under the OHSA.

What is the process for asserting a work refusal under the OHSA?

Work refusals involve two (2) stages.

First stage

• Worker considers work unsafe – in that machine, equipment, physical environment, tool etc… that the worker “is using or is told to use is likely to endanger himself or herself or another worker”.
• Worker immediately reports refusal to his/her supervisor or employer. Worker may also wish to advise the worker safety representative and/or management representative. Worker stays in safe place.
• Employer or supervisor investigates in the presence of the worker and the worker safety representative.

At this point, the issue will either be resolved, in which case the worker goes back to work, or the issue is not resolved, in which case the second stage is engaged.

Second stage

• With reasonable grounds to believe work is still unsafe, worker continues to refuse and remains in safe place. Worker or employer or someone representing worker or employer calls MOL.
• MOL Inspector investigates in company of worker, safety representative and supervisor or management representative.*
• Inspector gives decision to worker, management representative/supervisor and safety representative in writing.
• Changes are made if required or ordered. Worker returns to work.

What happens pending the Ministry of Labour Investigation?

The worker who refused the work must be kept in a safe place and may be offered other work (subject to any collective agreement that may apply).  The position of the Ministry of Labour is that the worker must be paid during this time.

The work that was refused may be offered to another worker provided management informs the worker that the offered work is the subject of work refusal. This communication must take place in the presence of:

• a member of the joint health and safety committee who represents workers; or
• a health and safety representative, or
• a worker who because of his or her knowledge, experience and training is selected by the trade union that represents the worker or, if there is not trade union, by the workers to represent them.

Can Essential Service Workers Refuse Work under the OHSA?

The state of emergency declared by the Ontario government under the Emergency Management and Civil Protection Act is to protect the “health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms”. 

If the worker falls under one of the limited exemptions to the work refusal provisions of the OHSA (e.g. police officers) then the OHSA will continue to apply and they will have limited refusal rights under the OHSA. 

If, however, the worker happens to work for an essential service employer as declared under O. Reg. 82/30the situation would likely be different.  For example, if an employee works as a cashier at a grocery store (a “businesses engaged in the retail and wholesale sale of food”) which is an essential service under O. Reg. 82/30, does this person have a right to refuse under the OHSA or has that right been abrogated by the government through O. Reg. 82/30? 

It is unlikely that this person’s rights under the OHSA have been diminished simply because the government has declared their employer to be an essential service.  As such, though the world continues to evolve, and COVID-19 has thrown everything on its head, if this person asserts a work refusal, the process described above would be undertaken. 

The Emergency Management and Civil Protection Act provides at section 7.2(4) that, in the event of a conflict between an order made under the Emergency Management and Civil Protection Act  and “any statute, regulation, rule, by-law, other order or instrument of a legislative nature, including a licence or approval, made or issued under a statute or regulation, the order made under subsection 7.0.2 (4) or 7.1 (2) prevails unless the statute, regulation, rule, by-law, other order or instrument of a legislative nature specifically provides that it is to apply despite this Act.”  However, the Emergency Management and Civil Protection Act goes on at section 7.2 to say that:

7.2 (8) Despite subsection (4), in the event of a conflict between this Act or an order made under subsection 7.0.2 (4) and the Occupational Health and Safety Act or a regulation made under it, the Occupational Health and Safety Act or the regulation made under it prevails.

Hopefully, the employer has taken specific COVID-19 related steps to meet their OHSA obligations and provided training to the affected employees, and that a dialogue at the First Stage will resolve the issue.  If things aren’t resolved, however, and the Ministry of Labour is called to dispatch an inspector to the scene, it is unclear in the COVID-19 world how this will work.

A really valuable resource is the Ministry of Labour, Guide to the Occupational Health and Safety Act.

Michael Fitzgibbon, “The Right to Refuse in a COVID-19 World” Canadian Law of Work Forum (March 27 2020): https://lawofwork.ca/the-right-to-refuse-in-a-covid-19-world/

See also Michael’s blog for more posts on COVID and other topics in employment law