VIDEO: Law in the Time of COVID-19 – the Right to Refuse Unsafe Work

By Zoë Roberts

Both employees and employers are understandably being cautious about the risks posed in the workplace by COVID-19. In this video, one of our lawyers, Zoë Roberts, answers questions about employers’ obligations to provide safe workplaces, and when employees can refuse to work if they have reason to believe the workplace is likely to endanger them because of COVID-19.

The on-going COVID-19 crisis has created new workplace safety hazards that many of us could not have imagined a few months ago. Both employees and employers are understandably being cautious about the risks posed in the workplace by COVID-19. But even when precautions are being taken, employers may encounter employees refusing to perform certain work due to safety concerns. This article will consider employer obligations and employee rights related to work refusals.

What is a ‘work refusal’?

Under the Ontario Occupational Health and Safety Act (“OHSA”), an employer is 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.

Given this general obligation on employers 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, 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.

It is important to note that the right to refuse work does not apply universally to all employees. ‘Essential’ employees, such as hospital employees, ambulance drivers, and police officers, cannot refuse work when:

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

When are employers likely to see work refusals during the COVID-19 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; or
• 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.

What is 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:

1. report the circumstances of the refusal to the employee’s employer or supervisor;
2. explain the reasons for the refusal; and
3. 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 and/or a workplace health and safety committee.

If the employer is able to resolve the safety concern, the employee will return to work. If, following an investigation and steps taken to deal with the circumstances that caused the employee to refuse work, 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 of the Ministry of Labour.

During the investigation of the workplace, the employee who exercised their right to refuse work must remain available for the purposes of the investigation, and might be assigned alternative duties by the employer 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 of returning to work.

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 of Labour investigator must provide their 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 careful case-by-case analysis. Employers should consider:

• The nature of work place (is it a primary health care provider? A grocery store? An IT company?);
• The specific employee refusing the work (are they over 65, and therefore at higher risk of catching COVID-19? Do they have a pre-existing condition that puts 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?); and
• Government recommendations and applicable Orders (is the workplace ‘essential’ or ‘non-essential’? Is it reasonable and possible to permit employees to work from home?).

What are some ‘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 the employee to work from home. 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 at this stage may be deemed unreasonable and the employee would be requested to return to work.

For more information on work refusals, please see the Ontario Provincial government’s Guide to the Occupational Health and Safety Act.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. If you have any questions on COVID-19 and your workplace or are dealing with a work refusal situation, please contact Minken Employment Lawyers at contact@minken.com or call us at 905-477-7011. Sign up for our newsletter to receive up-to-date COVID-19 information, including new legislation and Court decisions impacting your workplace.

Please note that this article is for informational purposes only and does not constitute legal advice.

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