An employee's personal preferences are not protected by human rights legislation, says Melanie Samuels of Singleton Reynolds in Vancouver
Q: What should an employer do if an employee refuses to work for health and safety reasons?
A: An employee has the right to refuse unsafe work that they reasonably believe presents a danger to themself or another employee. If that happens, the employer must investigate the concern. Having a policy and a workplace health and safety committee in place will help guide both the employee and the employer through the process.
An employer should be attentive to the issue, especially if the employee's health and safety reasons may be connected to a prohibited ground under human rights legislation. If this is the case, additional obligations such as the duty to accommodate will arise for an employer.
However, an employee's personal preferences are not protected by human rights legislation. For example, if a workplace had a mandatory mask policy in place on account of the COVID-19 pandemic and an employee refused to work because it was their personal preference not to wear a mask, enforcing the policy would likely not violate the employee's human rights: see The Customer v. The Store, 2021 BCHRT 39.
The mere assertion of having “breathing issues” has also been found to be insufficient to exclude someone from a mask mandate: see Rael v. Cartwright Jewelers and another, 2021 BCHRT 106. The employer would then discipline or terminate an employee for failing to wear a mask.
Work refusals are for immediate danger only, says a safety tribunal.
Generally speaking, if an employer finds that there is a health or safety risk, it must take immediate steps to protect employees and remedy the problem. An employer should provide the employee with appropriate options in the interim if it will take time to correct the issue. The employer should not assign the potentially unsafe work to any other employee while the investigation or corrective measures are ongoing.
In considering options to correct the issue, the employer should work with the employee or their representative and be as creative, open, and flexible as possible. The employer should implement a workplace policy providing guidance on the issue or update the existing policy if there is already one in place.
If, after a proper investigation, an employer determines that the employee's concern is without basis, the employer must notify the employee of such. If the employee continues to refuse to work, the employer can contact the provincial Ministry of Labour to investigate. If a government investigation additionally does not support the employee's concerns, yet the employee still refuses to work, an employer can consider that the employee has frustrated their employment contract by refusing to work.
In such a case, the employer would owe no severance. Terminating an employee in such circumstances could give rise to claim for bad faith if not handled delicately, as such a situation would likely not meet the threshold for just cause. While it is open to an employer to dismiss an employee without cause, there is some risk, especially if the concern may be connected to a protected ground for refusing work.
Therefore, it is recommended that employers instead take a more flexible approach and consider whether accommodations can still be made for the particular individual wherever possible. For instance, if an employee refuses to work as they do not want to abide by a workplace's mandatory vaccine policy, the employer could present them with other options such as working remotely, undergoing regular COVID-19 tests, or wearing appropriate personal protective equipment when in the workplace.
Work refusals can help with worker safety, but shouldn’t be used lightly.
As health and safety concerns arise in all workplaces, employees should be aware of their right to refuse unsafe work and exercise it where appropriate. Likewise, employers should understand their obligations and how to adequately respond to refusals to work for health and safety reasons. In refusing unsafe work, an employee can avoid being involved in a workplace accident, and the employer has the opportunity to improve the workplace and protect its employees against potential future harm.
Melanie Samuels is partner and chair of the Employment and Labour Group at Singleton Reynolds in Vancouver. This article was co-authored by Kailey Graham, an associate in the Workplace Law, Commercial Litigation, Construction and Infrastructure Law, and Professional Liability Practice Groups at Singleton Reynolds in Vancouver.