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ONTARIO’S MINISTRY OF LABOUR HAS NOT UPHELD ANY COVID-19 RELATED WORK REFUSALS TO DATE

April 28, 2020

Today the Toronto Star reported that the Ontario Ministry of Labour (“MOL”) has not upheld any work refusals by workers based on concerns relating to COVID-19 to date. Below we have set out an overview of workers’ right to refuse unsafe work in Ontario and discuss the significance of today’s news and what it means for your organization.

Workers’ Right to Refuse Unsafe Work

Under the Occupational Health and Safety Act (“OHSA”), provincially-regulated workers in Ontario are entitled to refuse to perform work without fear of reprisal if they have reason to believe that it is “likely to endanger” themselves or others, unless the danger is inherent to or a normal condition of the worker’s employment or the worker’s refusal would directly endanger the life, health, or safety of another person. Employees in all other jurisdictions in Canada have similar rights.

Consequently, workers may refuse to perform work where they believe it puts them at risk of contracting COVID-19.

The OHSA requires employers to investigate the alleged danger in the presence of the worker and the workplace’s Health and Safety Representative or Joint Health and Safety Committee, as applicable. Where a resolution cannot be reached, the employer must ensure that the Ministry of Labour (“MOL”) is notified, and an MOL Inspector must then investigate.

Takeaways

If it is in fact true that Ontario’s MOL has not upheld a single COVID-19 related work refusal to date, as has been reported, this certainly suggests that such refusals are unlikely to be upheld in the midst of the COVID-19 pandemic.

Nevertheless, this does not mean that employers should treat COVID-19 related work refusals differently than any other work refusal. As stated above, employers must investigate every work refusal. Further, employers must report all work refusals that they cannot resolve with the worker to the MOL.

To be clear, under the OHSA, employees are entitled to have the MOL ultimately determine whether a work refusal is valid.

Furthermore, where a worker refuses to perform work for reasons related to COVID-19 and the work refusal is ultimately not upheld by the MOL, employers can still face liability. Even where the test for a valid work refusal is not met, the MOL inspector conducting the investigation may still find that the employer has failed to meet one or more of its obligations under the Occupational Health and Safety Act and issue an order accordingly.

Therefore, while employers can take some comfort in knowing that the MOL is unlikely to find that a worker refusing to work for reasons related to COVID-19 is entitled to continue to refuse to work, they must still diligently fulfill their health and safety obligations and should not treat work refusals any less seriously.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.

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