Can an employee who has to come to the physical workplace make a work refusal because of a hazard that isn’t in the workplace, but is one that they believe makes their commute dangerous, such as driving conditions?
Question: Can an employee who has to come to the physical workplace make a work refusal because of a hazard that isn’t in the workplace, but is one that they believe makes their commute dangerous, such as driving conditions?
Answer: Not surprisingly, this is an issue that we have been dealing with for the better part of the pandemic. Simply put, many people are scared to go to work because of the perceived risk of getting there, especially if they rely on public transportation, and less because of a perceived risk in the workplace itself.
Occupational Health and Safety laws allow workers to refuse to engage in unsafe work. That has historically been related to physical risks, such as machine guards that were not properly installed (or installed at all). However, it applies equally to risks relating to transmission of a virus.
If there is a clear safety risk in the workplace, the employee has the right to refuse to work until it has been addressed. If the employer disagrees, a complaint is to be made to the Ministry of Labour, which will assign an Inspector to investigate the matter and assess the risk.
In order to justify a work refusal, there must be a clear safety risk in the workplace. A generalized fear of catching the virus is not sufficient, especially if it relates to catching it outside of the workplace itself. You may have seen media coverage of the fact that the Ministry of Labour in Ontario has rejected almost every single work refusal relating to COVID-19. That is because there was no evidence of a clear safety risk. General fears of the virus will not justify a work refusal, particularly if they relate to commuting to and from work, as opposed to the workplace itself.
The same analysis will apply to driving conditions. Obviously, in Canada, there is a recognition that there may be some winter days during which it is not safe to drive. Employers should be reasonable in that regard. But unsafe driving conditions do not justify a work refusal.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Toronto. He can be reached at [email protected] or (416) 864-8500.
