Written By: Paul McLean, Cheryl Edwards, Deanah Shelly and Jeremy Warning, Mathews Dinsdale [The following is general information and not legal advice.]
Canadian employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. This obligation is only heightened when faced with a global pandemic such as COVID-19.
Where a worker has a reasonable basis or reason to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety (which is not an inherent or normal condition of their work), the worker may be able to refuse to attend work or perform certain duties.[1]
In the context of the COVID-19 pandemic, employers can expect to see work refusals from employees based on:
- a confirmed or presumptive case of COVID-19 in the workplace;
- a confirmed case of COVID-19 in an employee’s immediate family or other close contact;
- the risk of potential exposure to COVID-19 from contractors, customers or clients depending on the nature of the workplace or the people it serves;
- concerns from employees who are particularly vulnerable (over age 65, compromised immune system, underlying medial condition) not wishing to report to work; or
- employees with a generalized fear of contracting COVID-19 by travelling to or attending work.
Whether or not a work refusal based on the above or other grounds is reasonable is going to be highly dependant on the facts. Where a concern escalates to the level of a refusal by a worker, or group of workers, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger.
In the context of COVID-19, the employer’s investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. It may also require reference to or assistance from public health or medical authorities.[2]
Remember, employers can’t dismiss, discipline, or intimidate employees for properly exercising a health and safety right. An employer may be justified in imposing discipline if the work refusal has been exercised in bad faith. However, the ability to discipline will depend on the circumstances of the work refusal and the language in the applicable work refusal right. An employer considering discipline for a refusing worker should do so after consultation with counsel in all but the clearest of cases.
If the employer and the worker are unable to resolve the issue, typically with the mandatory participation of the worker member of the workplace’s joint occupational health and safety committee (or a workers’ representative if applicable), the OHS regulator will be required to investigate and rule on the legitimacy of the work refusal.
The determination by the OHS regulator may be made without meeting with the workplace parties in person. When dealing with a work refusal related to COVID-19, we suggest this process is highly likely because OHS regulators may be required to respond to an increased number of work refusals or as part of protective or preventative measures to limit the potential exposure or spread of COVID-19 by safety of inspectors/officers.
Employers should understand that once the OHS regulator is required to investigate and render a decision regarding the work refusal, certainty and predictability is lost as the inspector/officer will apply his or who own assessment to the circumstances. Employers may, therefore, consider whether remedial steps are taken to address the worker’s concern, even if the circumstances indicate a lack of endangerment.
The nature of the COVID-19 pandemic creates further challenges for employers in the following ways:
- information is changing literally by the hour. What was an unreasonable basis for a refusal to work yesterday may be reasonable today;
- many provincial offices are closed or not operating as normal, including those which respond to appeals from work refusal orders – employers may have legitimate grounds to appeal an order arising from a work refusal but there is, candidly, nobody to deal with the appeal or having an appeal adjudicated on an expedited basis (which may be necessary) may be difficult to arrange; or
- given the tremendous economic uncertainty which has been generated in a matter of days, employees may be reluctant to bring legitimate workplace safety issues to the employer, for fear of the workplace being closed or the employee sent home.
Moving forward, employers should continue to take all reasonable efforts to ensure the safety of their workers and now, more than ever, educate themselves and their workers as to the legitimate safety risks created by COVID-19 and the steps to address these risks. Ensuring frequent and consistent communication may lessen workplace anxieties which could assist the functioning of the workplace in a number of ways – including reducing work refusals.
Paul McLean, Cheryl Edwards, Deanah Shelly and Jeremy Warning, ” Work Refusals and COVID-19″ Canadian Law of Work Forum (March 21 2020): https://lawofwork.ca/work-refusals-and-covid-19/
[1] There are nuances between provincial jurisdictions and the federal legislation respecting how subjective the standard is for a worker to exercise a work refusal. This article provides general guidance only.
[2] There are specific rules addressing employees whose work is, by nature, dangerous, such as healthcare workers.