Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Although Canadian employers that provide essential services have remained open since the first days of the COVID-19 pandemic, other employers were required to close their physical operations. Despite this, the nature of the services provided by some non-essential employers enabled them to have their employees work from home. In fact, the nature of the services provided by some “essential service” employers enabled them to also do so. When work from home was not possible due to the employee’s position, or the employer did not require its employees to work from home, many “non-essential service” employers laid their employees off on a temporary basis.
In response to the COVID-19 crisis, as previously discussed here and here, the governments of a number of jurisdictions in Canada amended their employment standards legislation to entitle employees to emergency unpaid job-protected leave when they are unable to work due to the declaration of a state of emergency or for reasons related to the designation of COVID-19 as an infectious disease. Most employees who were laid off due to the COVID-19 pandemic took this leave and applied for the Canada Emergency Response Benefit (CERB), a taxable benefit made available to workers by the federal government, which provides workers who qualify with $2,000 per month for up to four months, as we previously discussed here, here, and here. Once their entitlement to CERB expires, employees who remain laid off are entitled to apply for regular unemployment insurance (UI) benefits. However, if an employee is still laid off once their UI benefits expire and they have not found and accepted alternative employment, they will be in the unfortunate position of being without any benefit or income.
That said, we are now entering a new chapter of the unprecedented COVID-19 pandemic. Many Canadian jurisdictions are beginning the process of reopening their economies; in turn, the physical operations of many non-essential employers are gradually being reopened, and employees who were temporarily laid off are being recalled. Although some essential service employees asserted their right to refuse work pursuant to applicable occupational health and safety legislation on the basis that they were at risk of being endangered in the workplace, we anticipate that the volume of work refusals will increase as Canadian jurisdictions commence the reopening process.
In this Insight, we will discuss workplace refusals from two perspectives: the employer’s legal obligations under occupational health and safety legislation, and the practical realities that employers should consider. In conducting our analysis of the employer’s legal obligations, we focus on Ontario’s Occupational Health and Safety Act (OHSA). Although the occupational health and safety legislation in other provinces share many of the principles that exist in Ontario’s statute, employers in other jurisdictions are encouraged to closely analyze the language of their own legislation for any unique distinctions that may exist.
Workers’ right to refuse work
Pursuant to OHSA, a worker may refuse “to work or do particular work” where the worker “has reason to believe” that, among other things, “any equipment, machine, device or thing the worker is to use or operate” is likely to endanger them or another worker, or “the physical condition of the workplace” is likely to endanger them. It is important to note that, as evidenced by the language of the statue, workers need not prove the danger’s existence; they must merely have “reason to believe” that the danger exists.
Workers are required to report circumstances of work refusal
Upon refusing to work or do particular work, the worker is required to promptly report the circumstances of the refusal to their employer or supervisor.
Work refusal rights do not apply to certain workers
Work refusal rights in OHSA do not apply to certain workers, namely those for whom danger is “inherent in their work or is a normal condition of their employment,” or those whose refusal to work “would directly endanger the life, health or safety of another person.” Workers that fall into these categories include, among others, police officers, firefighters, persons employed in the operation of correctional facilities, hospitals, and long-term care homes.
Employers or supervisors are required to investigate work refusals
Upon receiving the worker’s report of the circumstances of their work refusal, the employer or supervisor is required “forthwith” to investigate the report in the presence of the worker and, if they exist, in the presence of one of the following, who must “be made available” and who must “attend without delay”: a committee member who represents workers; a health and safety representative, if any; a worker who because of knowledge, experience and training is selected by a union that represents the worker, or, if there is no union, a worker who because of the same characteristics is selected by the workers to represent them (a “workers’ representative”).
Until the investigation is completed, the worker must remain in a safe place that is as near as reasonably possible to their work station, and available to the employer or supervisor for the purposes of the investigation.
Following the investigation, the employer or supervisor may resolve the issue by taking steps to deal with the circumstances that caused the worker to refuse to work or do particular work.
Workers may refuse to work following an investigation or any steps taken to deal with the circumstances of their work refusal
The worker may refuse to work if, following the investigation or any steps taken to deal with the circumstances that caused their work refusal, they have reasonable grounds to believe that they or another worker remain in danger. When this occurs, the employer or the worker must notify a Ministry of Labour inspector.
Investigation by Ministry of Labour inspector
The Ministry of Labour inspector must investigate the refusal to work in consultation with the employer, the worker, and the workers’ representative, and decide whether the circumstance cited by the worker are likely to endanger the worker or another person. The Ministry of Labour inspector must provide their decision in writing as soon as is practicable to the employer, the worker, and the workers’ representative. In the decision, the inspector will indicate either that the refusing worker must return to work, or order the employer to take remedial measures.
Pending the investigation and the inspector’s decision, during their normal working hours, the worker must remain in a safe place that is as near as reasonably possible to their work station and available to the inspector for the purposes of the investigation. However, the worker will not be required to do so if, subject to the provisions of a collective agreement (if one exists), the employer assigns the worker reasonable alternative work; or, if subject to the prohibition in OHSA against employer reprisal (which prohibits an employer from dismissing, disciplining, or intimidating employees for exercising their rights under OHSA), when an assignment of reasonable alternative work is not practicable, the employer gives other directions to the worker.
Pending the investigation and the inspector’s decision, workers may not use or operate the equipment, machine, device or thing, or work in the workplace or in the part of the workplace being investigated, unless they have been advised of the other worker’s refusal and the reasons for their refusal, in the presence of a workers’ representative.
Reasonableness of work refusals
Generally, the reasonableness of an employee’s work refusal depends on the facts and circumstances relating to the danger complained of in the specific case. During the COVID-19 pandemic, employers may encounter work refusals based on an employee’s belief that the employer is not complying with applicable occupational health and safety guidelines for the safe reopening of workplaces during the pandemic.
The Public Health Agency of Canada (PHAC) has issued Risk-informed decision-making guidelines for workplaces and businesses during the COVID-19 pandemic, which include mitigation strategies to manage the risks of COVID-19 in the workplace. Furthermore, as previously discussed, on April 30, 2020, in anticipation of the gradual reopening of its economy, Ontario announced that it had released safety guidelines to enable employers to protect workers, customers, and the general public. Other jurisdictions in Canada have released safety guidelines similar to those released by Ontario. If an employee refuses work because an employer has failed to comply with these guidelines, the employer may take corrective measures to remedy its lapse in compliance.
Employers may also encounter employees who refuse to return to work because they have a general fear that in doing so they will become infected with COVID-19. Provided that an employer is following PHAC and applicable occupational health and safety guidelines, the employer will likely be considered justified in determining that a work refusal based on a general fear of infection is insufficient. Nonetheless, upon receiving a work refusal based on such a fear, the employer must follow the work refusal procedure set out in applicable occupational health and safety legislation. If upon completion of the process, the employer determines that the employee is unjustified in refusing work, the employee must return to work.
In some cases, the reasonableness of an employee’s work refusal may depend on the employee’s personal circumstances, including whether their health and safety is at greater risk than average due to a vulnerability that is specific to them, such as, for example:
- Their advanced age;
- An underlying physical health condition; or
- A mental health condition that may be exacerbated upon returning to work during the pandemic.
Other factors that may impact the reasonableness of an employee’s work refusal include whether:
- They live with and/or care for an individual who has an underlying health condition;
- They live with or care for an individual who has a mental health condition that may be exacerbated when they become aware of the employee’s return to work; or
- They are the parent of minor children whom they must care for during business hours due to the closure of camps in the summer and the closure of schools in the spring and fall.
Employers are encouraged to respond to a work refusal that is based on one of the circumstances listed above in the same manner that they would respond to any request for an accommodation due to a protected ground under human rights legislation such as, for example, age, disability, or family status.
Employees may also refuse to return to work for one or more of the following reasons:
- They are dependent on public transportation to make their way to the workplace;
- Their work requires them to travel by air or train;
- Their work requires interaction with a significant number of co-workers, contractors, delivery personnel, customers, or the general public;
- The geographic location of their workplace is in a province or city that has a high concentration of confirmed cases of COVID-19; or
- The employee’s co-workers or others present in the workplace have recently used a means of travel that might have increased their exposure to COVID-19, or travelled to locations where the number of confirmed cases is particularly high.
As the magnitude of the COVID-19 pandemic is unprecedented, it remains to be seen how employers and Ministry of Labour inspectors will analyze the reasonableness of an employee’s work refusal for one of the reasons listed above. Such a determination will require a contextual analysis on a case-by-case basis.
Volume of work refusals due to COVID-19
A practical consideration that Canadian employers should consider is that while the volume of work refusals in their workplace may be significant, the volume throughout their jurisdiction is likely to be that much more so. In the event that a work refusal process reaches the point at which escalation to a Ministry of Labour inspector becomes necessary, it may be some time before an inspector becomes available. As a result, the process may come to a complete standstill until receipt of the inspector’s written decision, which may not occur for quite some time. The business impact caused by this delay may be considerable.
In an effort to avoid a long and protracted work refusal process, employers are encouraged to engage in an open and sincere dialogue with employees to ensure a full understanding of their reasons for refusing work. Where an employer can take measures to alleviate the employee’s concerns, the employer should immediately do so to avoid a long, drawn-out process that will disrupt their business affairs.
If remedial measures are not possible, and it is possible to reassign the employee to a position in which they will not continue to be exposed to the danger they believe exists in the workplace, employers may consider facilitating such a reassignment. If reassignment is not possible, but the nature of the employee’s work makes remote work possible, work from home may be a practical solution; however, remote work is not an option for many employees due to the nature of their work.
Bottom Line for Employers
Employers should expect to receive a plentiful number of work refusals as they reopen; the process of navigating them in the context of an unprecedented global pandemic will be time-consuming and complex, with each work refusal based on a unique set of facts and circumstances. Employers are encouraged to seek the advice of experienced counsel to ensure that their responses are consistent, coordinated, and in compliance with applicable PHAC and occupational health and safety requirements.