White-knuckle commuting (Toughest HR Question)

In inclement weather, can employees refuse to travel to work for safety reasons?
By Brian Kenny
|Canadian HR Reporter|Last Updated: 04/09/2013

Question: Does an employee have the right to refuse to drive to work in bad weather?

Answer: An employee has a right to refuse what she reasonably believes to be unsafe work, pursuant to occupational health and safety legislation across Canada. Occupational health and safety legislation usually contains provisions requiring an employer to take all reasonably practical steps to ensure the health and safety of employees.

If inclement weather posed a health and safety risk to employees, an employer may well be required to shut down work, or certain aspects of work.

In considering any work refusal situation, it is important to start first with the statute in force in the particular jurisdiction and the rules pertaining to an employer’s obligations to protect employees and their right to refuse dangerous work.

Usually, to initially exercise a right to refuse work, an employee only needs to have a “reason to believe” weather conditions would be unsafe for her to travel. Although people have different views of what constitutes safety concerns, the initial refusal is generally based on the employee’s subjective belief.

Thereafter, depending on the jurisdiction, a health and safety committee or officer would usually review the circumstances to determine if the belief was well-founded. If the circumstances are such that the employee’s decision to refuse to report for work was upheld, then the employee would have a right to continue to refuse to report for work.

But if it was determined on an objective standard that it was not unsafe to report to work, then the employee would be expected to return to work. Failure to do so could result in discipline or a deduction in wages for the time missed.

In some cases, weather and driving conditions have been relied on by employees as a basis to exercise their right to refuse to work. Such a belief has been upheld as reasonable by certain tribunals. For example, in Davey v. Canadian Pacific Railway, an appeals officer under the Canada Labour Code considered employees’ refusal to work in response to inclement weather that made driving conditions hazardous.

The health and safety officer had initially found no danger existed at the time of the investigation. However, after examining the particular facts of the case, the appeals officer concluded it was reasonable to believe there was a danger for a traffic accident and a risk for significant injury for employees driving to work.

The appeals officer held the employees validly exercised their right to refuse to work. The appeals officer further directed the employer to protect the health and safety of employees against possibly hazardous conditions by discontinuing travel through inclement weather conditions and creating a policy and clear guidelines for the employees around travelling through inclement weather.

As such, it might be good practice for employers to develop such a policy and guidelines if employees are frequently required to travel in inclement weather conditions.

It should also be noted the rights of employees to refuse unsafe work might be limited by the type of work involved. For example, firefighters, police officers, health-care workers or correctional officers may be limited in different ways than other employees. The applicable occupational health and safety legislation in each jurisdiction should be reviewed to determine exactly how and when employees may refuse to do work.

In addition, a collective bargaining agreement or employment contract might address refusal-to-work rights, and these documents should also be carefully reviewed to determine how and when an employee might be able to refuse to come to work for safety reasons.

Brian Kenny is a partner at MacPherson Leslie and Tyerman in Regina. He can be reached at (306) 347-8421
or bkenny@mlt.com.

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