Is an employee's refusal to follow safety procedures related to wearing PPE or physical distancing serious enough to warrant dismissal?
Question: Is an employee’s refusal to follow safety procedures related to wearing PPE or physical distancing serious enough to warrant dismissal?
Answer: It is an employer’s prerogative to establish policies and procedures, and it is its legal obligation to take all reasonable steps to ensure a safe workplace. During the COVID-19 pandemic, that means mandating the use of PPE and physical distancing in many cases.
Various provincial governments, such as those of Ontario and Alberta, have published guidelines for returning to work during COVID-19. These include a hierarchy of controls to address identified hazards related to the virus in the workplace:
- Engineering controls, such as physical distancing and barriers
- Administrative controls, such as adjusting policies and procedures
- The use of personal protective equipment (PPE)
This hierarchy requires all mitigation measures to be taken before requiring the use of PPE. Employees must also be trained to correctly use PPE and have necessary equipment provided to them by an employer requiring its use.
Breach of a policy will warrant discipline, as will insubordination (refusal to follow direction) if the rules or directions are reasonable. Whether they will warrant summary dismissal is an entirely different question. This would be evaluated using a contextual approach.
You would have to assess the need for the policy in question and the potential consequences of a failure to comply. For example, if an employer in a high-risk environment mandates the wearing of masks in the workplace and an employee refuses to comply without a valid reason, it is more likely that dismissal will be warranted.
Alternatively, in a low-risk situation, such as an isolated office capable of complete social distancing, this might not be the case. If a requirement or rule is found not to be justifiable, then breaching it will not generate the same consequences.
Courts will also consider all relevant factors, and one such factor will be the importance of the policy. Our judiciary is particularly inclined to support the enforcement of safety rules and regulations, and that will undoubtedly be even more true during the COVID-19 pandemic. As long as the requirement is defensible and employees are properly advised of the expectations and warned of the consequences of failing to comply, then all else being equal, it is more likely that dismissal will be upheld.
It is vital that employers craft and communicate valid and reasonable policies and procedures relevant to the specific conditions of their workplaces in order to have the ability to enforce them.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He can be reached at [email protected] or (416) 864-8500.