Employment lawyer look at issues such as refusal of unsafe work, compensation, childcare and remote options
The record-breaking winter storm that dumped almost 50 centimetres of snow on Ontario and Quebec earlier this week is now moving into Atlantic Canada, bringing with it school closures, cancelled flights and warnings from officials to stay off the roads.
For employers with workers digging themselves out of snow-locked residential streets or contemplating highway commutes, the idea of a workplace snow day can also bring legal risks.
Canadian HR Reporter spoke with Aaron Zaltzman, employment lawyer at Whitten & Lublin in Toronto, to explain how an employer calling a snow day (or deciding not to) can impact pay, occupational health and safety (OHS) concerns and human rights implications.
Extreme weather, commuting and refusal of unsafe work
Zaltzman starts by stressing that OHS obligations are triggered before an employee even arrives at work, with the commute itself raising possible legal triggers.
If an employee refuses to go to work because they don’t feel safe driving in winter conditions, Zaltzman explains, “That triggers an obligation under the Occupational Health and Safety Act for refusal to perform unsafe work, because commuting is part of work.”
What that means is that employers across affected provinces should think carefully before insisting on inp-erson attendance during a storm, particularly where public advisories are warning about dangerous travel and urging residents to stay put.
Zaltzman notes that under Ontario’s framework, refusal of unsafe work comes with specific protections, particularly against reprisals: “The employee can take you to the OLRB [Ontario Labour Relations Board].”
Policies and compliance for emergency snow day plans
Environment and Climate Change Canada notes that the Ontario storm “created significant impacts on transportation and leading to school closures across much of Toronto and the surrounding areas,” while in Quebec “some Montreal schools announced weather-related closures.”
In Atlantic Canada, schools, universities and airports in places like Halifax are also seeing closures and cancellations as the system moves east.
Given the combination of safety, operations and liability concerns around commuting in inclement weather, Zaltzman recommends employers use remote work as a response strategy tool, even companies that don’t normally sanction remote working.
The important thing is being proactive, he stresses.
“Having some kind of flexible work arrangement, even if it's purely on an emergency basis, is a good idea,” he says – that means identifying which roles can be done remotely, what tools and access are required, and how managers in different regions should communicate when storm warnings are issued.
Clear policy language about when employers can schedule vacation, and how storm-related closures will be treated, can help reduce uncertainty for both managers and staff, Zaltzman says, “Because that means that you're not having to make these decisions ad hoc, in a very, very short period of time.”
He recommends employers create policies that provide structure without being rigid; in practice, that means snow-day policies for national or multi-province employers might set out shared principles – such as prioritizing safety, complying with local employment standards and human rights laws, and using remote work where possible – while allowing local leaders to respond to specific conditions in their region.
Family status and snow day accommodations
As the storm system moves east, school closures have spread from southern Ontario into Montreal and across much of Nova Scotia and other Atlantic provinces. For employers, this means addressing family-status questions as employees manage unexpected care responsibilities with work needs.
Zaltzman underlines that these are not just personal challenges – they can also be human rights issues, the biggest risks arising when employers fail to engage in an accommodation process or respond inflexibly in situations outside the employee’s control, such as school closures.
“If you are not being reasonable and accommodating with an employee who's dealing with … their kids being home from school or some other necessary accommodation on a protected ground,” he says, “you're absolutely going to run into the potential that you are you are discriminating against them.”
If an employee is forced to alter their schedule because of children home on a snow day, for example, their employer is obligated to accommodate them to the point of undue hardship, which is subject to context in each case, Zaltzman explains.
“What undue hardship means is going to be different depending on what the employee does,” he says.
“But their employment is what their duties are and how much that needs to change based on the fact that their kids are home.”
When work refusal becomes insubordination
Not every disagreement about coming in during a storm will fall squarely within the statutory “unsafe work” process, Zaltzman says. There will be cases where employers and employees have different ideas of how bad conditions are, where refusal to work becomes an issue of insubordination.
The question at that point would be how to address that insubordination, he says – but cautions that it’s unlikely a court would find such a scenario grounds for dismissal.
Finally, Zaltzman warns employers that during the tumult of emergency weather responses and decisions, to not to forget about their usual obligations to provide safe working conditions.
“You have to make sure that the parking lot is clear, you have to make sure the walkways are clear, you have to make sure it's safe for people to walk around, you have to make sure that there's adequate heating and protection,” he says.
“If there's any injury from doing that work, or importantly, from commuting to work in those conditions, that can be considered a workplace injury for the purposes of the WSIB.”
