Employee work refusal

Question: If an employer has made all reasonable attempts to make the workplace safe but an employee still refuses to work, what should the employer do?

Answer: Most employers are working hard to communicate and assure employees that the workplace is safe and that all applicable government expectations are being fulfilled, if not exceeded. Nonetheless, with the fear and anxiety following the outbreak of COVID-19, there are some employees who do not want to return to the workplace. Some have good reasons protected by law, while others need to feel comforted that they are not at risk and a very few may be enjoying government income programs.

Employers recognize that an employee’s refusal to work may be legally protected under occupational health and safety, human rights or employment standards legislation. While each case will turn on its own facts, broadly speaking, a general fear of contracting COVID-19 will not suffice as a valid reason to refuse work. If the workplace is safe, the employee has to return unless there are legal exemptions. Employees without a valid reason to refuse may be required to return or else risk being subject to discipline and losing entitlement to the Canada Emergency Response Benefit (CERB).

Depending on the reason for the employee’s refusal, the employer may be required to:

• provide an appropriate statutory leave;
• activate the work refusal process pursuant to occupational health and safety legislation;
• accommodate the employee to the point of undue hardship, as required by human rights legislation.

Employers that are unable to resolve their employee’s concern and are unsure which approach to take should seek legal advice.

Work refusals under occupational health and safety legislation
The right to refuse unsafe work is a fundamental employee right enshrined in occupational health and safety legislation across Canada. To be a valid work refusal, the work being refused must be reasonably likely to endanger the worker or another person. The presence of COVID-19, taken alone, is not sufficient to meet this threshold where the employer has met its burden of taking all reasonable precautions.

With respect to COVID-19, depending on the circumstances, possible reasons for a work refusal may include employment circumstances with significant exposure to the general public where adequate protective measures are not being taken or where PPE is not being used or is being used improperly.

While the work refusal process is different in each jurisdiction, at a high level, the process generally begins by the employee reporting the refusal to their supervisor. The employer must investigate the reason for refusal and take any necessary remedial action. Many concerns may be able to be resolved quickly at this first stage. It is important to listen to the employee’s concerns and engage in a meaningful discussion with them.

If this does not resolve the employee’s concern, the matter is escalated to the OHS committee and/or applicable government OHS agency (depending on the jurisdiction). Where the matter is referred to the applicable government OHS agency, an officer will investigate and make a binding determination. If a government-appointed investigator becomes involved, the investigator will make one of three findings:

• the employment environment is unsafe, which may lead to an order to cease operations;
• that the work environment is safe;
• the employer must take some sort of corrective action (e.g. install a physical barrier).

If the work environment is found to be safe or corrective action is needed and the employer undertakes the corrective action suggested, the employee will no longer be able to refuse work without being subject to discipline (including up to termination) and potentially losing access to government employee support programs (such as employment insurance benefits).

In light of the current pandemic, employers are encouraged to follow public health authorities’ guidelines to reduce the risk of transmission of COVID-19 in the workplace. While each circumstance must be assessed on a case-by-case basis, where employers follow guidelines, past jurisprudence from the 2002-2004 SARS outbreak suggests that there is little basis for supporting a work refusal.

Human rights and statutory leaves
Under human rights legislation, employers may need to accommodate employees on protected grounds, including age, disability and family status. This means that employees with an underlying health condition or caregiving obligations as a result of school or daycare closures may be entitled to accommodation. Each worker’s individual circumstances must be considered.

Employers may need to provide a leave of absence or other form of accommodation such as temporary reassignment, working from home or different working hours for some workers who are unable to attend work for these reasons.

Finally, most jurisdictions have some statutory (unpaid) leaves that employees may seek if they are required to self-isolate or have caregiving obligations.

Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].