Amid the coronavirus outbreak in Ontario, many employees are concerned that attending the workplace will expose them to COVID-19. This post discusses the legal issues surrounding a refusal to work.
Can an employee refuse unsafe work?
Yes. Under the Ontario Occupational Health and Safety Act (OHSA), most employees have the right to refuse unsafe work when they have a reasonable belief that the work is dangerous.
A common example is when an employee refuses to work because the employer has not provided proper protective equipment. Likely exposure to workplace violence can also be a reason to refuse work
What happens when an employee refuses unsafe work?
Employees and employers must follow a step-by-step process when an employee refuses unsafe work. This includes the following:
The employee reports the refusal to the employer.
The employee remains as close as possible to the workstation.
The employer investigates the unsafe refusal report and takes steps (if any) to provide a safe working environment.
After the investigation, if the employee still has a reasonable belief that there is an unsafe working environment, the employee can refuse work and notify a Ministry of Labour inspector.
The Ministry of Labour inspector will investigate.
If an employee disagrees with the inspector’s investigation results, the employee may apply to the Labour Board to review the investigation.
During this process, the employee must be paid their regular wages. Employers are also not allowed to reprise or retaliate against employees for refusing unsafe work.
Is the concern of catching COVID-19 enough to refuse unsafe work?
Given the uncertainties of COVID-19, it depends on the situation.
Two extreme examples may help employers and employees think about this issue. If an employer orders numerous employees to gather closely, an employee may have the right to refuse to work. This is especially so if there are no barriers or social distancing mandated by the employer.
On the other hand, if an employee works in their office alone and may encounter an occasional coworker, while maintaining adequate distance, this employee would likely not be able to refuse unsafe work.
There are also certain situations where employers must allow an employee to be off due to COVID-19, explained in the next question.
When can an employee take a leave of absence because of COVID-19?
Related to unsafe work refusals, employers must allow employees a leave of absence if they are affected by COVID-19 in the following ways:
The employee is under individual medical investigation, supervision or treatment related to COVID-19.
The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to COVID-19.
The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to COVID-19 issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to COVID-19.
The employee is providing care or support to certain family members because of a matter related to COVID-19 that concerns that individual, including, but not limited to, school or day care closures. These family members include:
The employee’s spouse.
A parent, step-parent or foster parent of the employee or the employee’s spouse.
A child, step-child or foster child of the employee or the employee’s spouse.
A child who is under legal guardianship of the employee or the employee’s spouse.
A brother, step-brother, sister or step-sister of the employee.
A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
A son-in-law or daughter-in-law of the employee or the employee’s spouse.
An uncle or aunt of the employee or the employee’s spouse.
A nephew or niece of the employee or the employee’s spouse.
The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
The employee is directly affected by travel restrictions related to COVID-19 and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
These 6 reasons are mandated by the Employment Standards Act. Employers are not permitted to ask for a medical note when an employee seeks a leave for one of these reasons but can ask for reasonable evidence. Any leave of absence will also be unpaid.
Like unsafe work refusals, employers must not reprise against employees when they take a leave of absence due to COVID-19.
What should employers and employees do when there is a report of unsafe work to COVID-19?
They should work together and determine the best way that the employee can work safely under the circumstances.
Employees must remember that any refusal must be supported by a reasonable belief that there is unsafe work. Employers must remember to investigate appropriately and not to retaliate against employees who refuse unsafe work in good faith.
To prevent these types of situations, it may be best practice for employees to work from home as much as possible. While employees must come to work if they are ordered to do so, they also have the right to refuse unsafe work.
Jason Wong is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about refusing work due to coronavirus, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.