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Bulletin | Covid-19

Work Refusals During the COVID-19 Pandemic: What Employers Need to Know About the Right to Refuse Unsafe Work

Fasken
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Labour, Employment & Human Rights Bulletin

There has been a growing number of reported cases of workers exercising their right to refuse unsafe work related to COVID-19 pursuant to occupational health and safety legislation. For example:

  • about a dozen Toronto Transit Commission (TTC) workers collectively refused to work at a TTC streetcar facility based on concerns over the adequacy of the deep cleaning of streetcars; [1]
  • around 166 workers at an automotive assembly plant in Windsor initiated a one-day work refusal in response to a worker being placed under self-quarantine because of potential "secondary" exposure to COVID-19.[2]

In both cases, an Ontario Ministry of Labour inspector determined that the work refusal did not meet the necessary criteria, and the refusing workers were required to return to work. More of these work refusals can be expected as the COVID-19 pandemic continues to unfold.

This bulletin discusses the responsibilities of employers under occupational health and safety legislation when faced with a refusal to work based on unsafe work. These responsibilities are also subject to obligations in any collective agreement in unionized workplaces. While the focus is on Ontario law, many of these principles will generally apply in most other provinces. In all cases, the specific statutory language should be consulted. 

What is the Right to Refuse Unsafe Work?

Pursuant to the Occupational Health and Safety Act ("OHSA"), workers in Ontario are entitled to refuse to work when they have reason to believe, among other things, that the "physical condition of the workplace", or any equipment, machine, device or thing they use or operate, is likely to endanger them. The statutory threshold to justify a refusal of unsafe work will vary between jurisdictions. In every jurisdiction, however, the worker does not need to prove they are actually at risk in order to initiate a work refusal.

The right to refuse unsafe work is more restricted for prescribed workers, which typically includes firefighters, police officers and certain healthcare workers. These workers are generally not entitled to refuse unsafe work (1) that is inherent in their work or is a normal condition of their employment, or (2) when their refusal to work would directly endanger the life, health or safety or another person.

What Must an Employer do in Response to an Unsafe Work Refusal?

Should a worker exercise their right to refuse unsafe work, an employer must follow the investigatory and reporting process outlined in the legislation. This includes:

  •  internally investigating the situation (typically in the presence of the refusing worker and a health and safety representative or worker representative);
  • recording the circumstances of the work refusal and investigation; and
  • ensuring any necessary action to remedy the danger is taken.

If a worker continues to refuse to work, a government health and safety inspector must be notified and will visit the workplace to investigate the continued work refusal. If the inspector finds the statutory threshold to justify the work refusal is not met, the refusing worker will be expected to return to work. If the inspector finds otherwise, they will typically order remedial measures.

How Does this Apply During a Pandemic?

Not surprisingly, the right to refuse unsafe work has arisen in the context of other infectious diseases. In one case, two airline ticket agents engaged in a work refusal during the SARS outbreak for fear of contracting the illness while interacting with passengers. They insisted on wearing gloves and face masks in order to continue in their roles.

The conclusion reached by the employer, and in the subsequent health and safety investigation under the governing federal Canada Labour Code ("CLC"), was that no "danger" existed as required by the CLC to justify the work refusal. Their conclusion was based on guidance by public health authorities, including the World Health Organization and Health Canada. This finding was upheld on review by the federal labour relations board.

In another case, two officers working at a government services centre near an airport refused to work unless their employer provided them with masks and gloves. Some of the clients they interacted with were directly arriving from countries where SARS was known to be prevalent. Although the employer permitted them to wear masks and gloves during these interactions, the employer insisted they procure this equipment themselves, resulting in the work refusal.

The findings of the CLC investigator, which were upheld on appeal, were that the employer appropriately relied on Health Canada guidance that the positions were at low risk because of their limited contact with the public. Moreover, the use of protective equipment at issue was not necessary given this low risk, and clients arriving from the airport were being subject to SARS-related controls. Accordingly, the threshold for "danger" under the CLC was not met.

Although the decisions in these cases are based on their particular legislation and particular facts, they offer some general guidance for employers on their obligations in the context of a pandemic.

What Can Employers do to Provide a Safe Workplace?

Under the "general duty clause" of the OHSA, and similarly in other jurisdictions, an employer has a general obligation to take reasonable precautions to protect the health and safety of its workers. In the context of a pandemic, an employer can also expect workers to exercise their right to refuse unsafe work based on what they perceive as inadequate protections.

In the two work refusal cases described above, the employers were credited for following the guidance of public health authorities in developing their workplace protection policies. Doing so helped support their position that they were providing adequate protections and a sufficiently safe workplace that did not justify work refusals.

During the COVID-19 pandemic, it is essential that employers implement appropriate protective measures by following the latest guidance of their municipal and provincial public health agencies, as well as the latest guidance of the Public Health Agency of Canada ("PHAC"). Based on current PHAC guidance, these measures should include the following:

  • restricting individuals from the workplace based on the official criteria for recommended or required self-isolation, including returning from travels outside Canada;
  • requiring employees who have even mild COVID-19 symptoms, as recognized by PHAC, to stay at home, contact public health authorities, and follow their directions;
  • encouraging social distancing to reduce transmission, which may include facilitating remote work arrangements and rearranging the workplace for other workers as practical; and
  • promoting good hygiene practices, including frequent hand-washing, avoiding the touching of one's face with unwashed hands, coughing or sneezing into one's elbow, and ensuring the regular cleaning of high-touch surfaces throughout the workplace.

Conclusion

The COVID-19 pandemic is in many ways an unprecedented situation. At this time, it is especially important for employers to be proactive in implementing public health guidance and taking reasonable precautions to alleviate workers' concerns. Employers must also be aware of their specific obligations in the context of an unsafe work refusal, and ensure such refusals are appropriately handled in full compliance with occupational health and safety legislation.


 

[1] Oliver Moore, "Coronavirus concerns prompt TTC disruption as handful of workers refuse to work", Globe and Mail (12 March 2020), online: "Coronavirus concerns prompt TTC disruption as handful of workers refuse to work"

[2] "Production back up at Windsor Assembly after employees refuse work amid COVID-19 concerns", CBC News (13 March 2020), online: "Production back up at Windsor Assembly after employees refuse work amid COVID-19"

 

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