Workplace safety during COVID-19: the right to refuse unsafe work

When remote workers return to the workplace, employers may face work refusals due to safety concerns

Workplace safety during COVID-19: the right to refuse unsafe work

The ongoing COVID-19 crisis has created new workplace safety hazards that many of us could not have imagined only a few months ago. Both employees and employers are understandably being cautious about the risks posed in the workplace by the pandemic. But even when precautions are taken, employers may encounter employees refusing to perform certain work due to safety concerns.

What is a work refusal?
In Ontario, for example, the Occupational Health and Safety Act (OHSA) makes an employer responsible for ensuring the health and safety of their employees; employers must take every precaution reasonable in the circumstances for the protection of their employees. Other jurisdictions have similar requirements.

Given this general obligation to provide a safe workplace, most employees have the associated right to refuse to work in a workplace they have reason to believe is likely to endanger them. Specifically, under the OHSA, employees may refuse to work or perform particular tasks where they have reason to believe that:

  • any equipment, machine, device or thing the employee is to use or operate is likely to endanger them or another employee; or
  • the physical condition of the workplace or the part thereof in which the employee works or is to work is likely to endanger them.

The right to refuse work does not apply universally to all employees. “Essential” employees, such as hospital workers, ambulance drivers and police officers cannot refuse work when:

  • the likely endangerment is inherent in the employee’s work or is a normal condition of the employee’s employment; or
  • the employee’s refusal to work would directly endanger the life, health or safety of another person.

Work refusals during the pandemic
During the COVID-19 crisis, it is possible that employees could refuse work in the following circumstances:

  • When there is a confirmed or presumptive case of COVID-19 in the workplace;
  • If the employee is considered “high risk” for contracting COVID-19 due to their age or a pre-existing condition;
  • If the employee works in an essential service — for example, a grocery store — and is concerned about the increased risk of exposure due to close proximity with the general public and colleagues.

The process for a work refusal
If an employee reasonably believes the workplace is likely to endanger them or another employee and,  therefore, refuses to work, the employee must:

  • Report the circumstances of the refusal to the employee’s employer or supervisor;
  • Explain the reasons for the refusal;
  • Remain available for the purposes of the investigation.

The employer must then investigate the work refusal in the presence of the employee. The employer may have an obligation to advise other parties of the refusal, such as a health and safety representative, a union representative or a workplace health and safety committee.

If the employer is able to resolve the safety concern, the employee should return to work. If an investigation is performed and steps to deal with the circumstances are taken and the employee still has reasonable grounds to believe they are likely to be endangered, they can continue to refuse work and the employer must notify a Ministry of Labour inspector. The investigation then continues with assistance from the ministry.

During the investigation, the employee who exercised their right to refuse work must remain available and might be assigned alternative duties pending results of the investigation. The employee may also be given “other directions” by their employer during the Ministry of Labour’s investigation, which could likely include paid or unpaid leave depending on the length of time required to determine the risk.

During the investigation, an employer can request a different employee to assume the refused work, but the employer will need to inform the replacement employee that the work was refused and why it was refused.

The ministry investigator must provide a decision in writing to the employee and the employer. If the investigator finds that the circumstance is not likely to endanger anyone, the refusing employee is expected to return to work. If the investigator finds that the circumstance is likely to endanger the employee or another person, the investigator will typically order the employer to remedy the hazard.

How does an employer know if a workplace is likely to endanger employees?
Determination of whether the workplace is likely to endanger an employee will depend on a lot of factors and requires a case-by-case analysis. Employers should consider:

  • The nature of workplace. (Is it a primary health-care provider, grocery store or an IT company?);
  • The specific employee refusing the work. (Are they over 65 or have a pre-existing condition putting them at greater risk?);
  • The most current information on COVID-19 from public health authorities. (Is the workplace in a geographic area that has been particularly hard hit by COVID-19? What are the most up-to-date recommendations for physical distancing and personal protective equipment?);
  • Government recommendations and applicable orders. (Is the workplace essential or non-essential? Is it reasonable and possible to permit employees to work from home?).

Best practices for dealing with work refusals
Keep in mind that employers generally cannot discipline, sanction or threaten an employee for exercising their right to refuse work — this would be a reprisal in breach of the employer’s obligations under the OHSA.

In the event that an employee who is refusing to attend the workplace due to fear of COVID-19 is able to work from home, employers should consider permitting it. If the employee cannot work from home due to the nature of their position but the investigation deems the workplace to be safe and the employer can demonstrate that reasonable steps have been taken to ensure the employee’s safety, any continuation of the work refusal may be deemed unreasonable and the employee would be requested to return to work.

 

Zoë Roberts is an employment lawyer with Minken Employment Lawyers, an employment law boutique in Markham, Ont. She and her firm can be reached by visiting www.MinkenEmploymentLawyers.ca.

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