Addressing Legitimate Safety-Based Work Refusals During the COVID-19 Pandemic
With the start of the 2020-2021 school year, more and more employers are beginning to return employees to working in-person after months of working from home. In doing so, it is crucial for employers to understand how to respond appropriately to legitimate safety-based work refusals during the COVID-19 pandemic so that they can ensure that they meet their obligations under the Occupational Health and Safety Act [OHSA].
In this tenth post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations on how legitimate safety-based work refusals may arise in the COVID-19 context, and how to properly address those refusals.
As per usual, the case study below is based on a real-world situation with respect to which we recently provided advice to a client. The details of the scenario have been adapted and anonymized.
- Tonya worked for an employer in an office setting as an assistant to a few managers, including a middle manager named Benjamin.
- The employer recently returned most of its employees to working in the office after conducting a robust risk assessment and implementing a comprehensive pandemic response plan that included policies and procedures requiring employees to not attend the office and to self-isolate at home if they experience any signs or symptoms of COVID-19.
- Benjamin’s office was relatively small. Tonya’s duties generally required her to enter his office throughout the day, and Tonya’s desk was just outside of Benjamin’s office.
- One morning Tonya showed up for work and noticed that Benjamin had a bad cough.
- Tonya was fearful that Benjamin may have COVID-19 and asked him whether he should go home and self-isolate, pursuant to the employer’s policy.
- Benjamin stated that it was just a cough, that he was sure that he did not have COVID-19, and that he would not go home because he had to meet several important deadlines.
- Tonya went to the human resources department and stated that she did not feel safe working in the office because of Benjamin’s cough and that she refused to continue working that day unless something was done about it.
- The employer reached out to us for advice in relation to Tonya’s work refusal.
- We advised the employer that Tonya’s work refusal was likely a legitimate exercise of her right as a worker to refuse to perform unsafe work under the OHSA, and that it must be addressed accordingly.
- We further advised the employer that if it failed to follow its COVID-19 policy and require Benjamin to leave due to his COVID-19 related symptoms, that it could face liability for failing to take every reasonable precaution in the circumstances for the health and safety of its workers.
- The employer promptly investigated Tonya’s work refusal, with Tonya and a health and safety representative present, while ensuring that all employees remained at least 2 metres from Benjamin.
- The employer consequently instructed Benjamin to go home to self-isolate and had his office and the surrounding areas thoroughly cleaned.
- The employer then asked Tonya whether she was willing to return to work and she stated that she was.
|How the Employer Met its Legal Obligations
|How the Employer Could Have Exposed Itself to Liability
Key Considerations and Takeaways:
In Ontario, workers generally have the right to refuse or stop work where they have reason to believe that the work, the workplace, or any equipment or other physical condition in the workplace is likely to endanger themselves or another worker. Workers in every other Canadian jurisdiction have similar rights.
For a worker to exercise their right to refuse unsafe work in Ontario, they must report this refusal and the relevant circumstances promptly to their employer or supervisor. The employer or supervisor must then investigate the refusal in the presence of the worker, as well as a member of the joint health and safety committee, a health and safety representative, a union representative, or a representative selected by the worker, as applicable. Until the investigation is completed, the worker must remain in a safe place that is as near as reasonably possible to their workstation and be available to the employer/supervisor for the purposes of the investigation. The employer/supervisor may then take steps to address the allegedly unsafe conditions and ask the worker whether they are willing to return to work after doing so.
In this case, the employer met its obligation under the OHSA to investigate Tonya’s work refusal by promptly investigating her reports of Benjamin having a bad cough and not following the company policy regarding COVID-19 symptoms. In particular, the employer investigated the circumstances of Tonya’s work refusal in her presence, and that of a health and safety representative, while ensuring that they remained in a safe place.
The employer also met its obligation to take every reasonable precaution for the health and safety of its workers under the OHSA by consistently enforcing its policy requiring Benjamin to go home and self isolate, and by thoroughly cleaning Benjamin’s office and the surrounding areas. In this case, Tonya was satisfied with the steps that the employer took and agreed to return to work. However, it is crucial to understand the steps that an employer must take where an employee continues to exercise their right to refuse unsafe work.
If the worker still has reason to believe that the work, workplace, or any equipment is likely to endanger themselves or another worker after the employer/supervisor has investigated and taken any steps to address the allegedly unsafe conditions, they may continue to refuse to perform the work. Where this occurs, the employer must notify the Ministry of Labour (“MOL”). The MOL would then send an inspector to investigate the work refusal in consultation with the employer and the worker and any applicable representatives, and provide a written decision as soon as practicable. If the inspector decides that the work refusal is not legitimate, then the employer can require the employee to return to work. On the other hand, if the inspector finds that the work refusal is legitimate, then they may require the employer to rectify the unsafe conditions before requiring the employee to return to work.
Given employees’ legitimate fears about contracting COVID-19 at this time, safety-based work refusals are more common now than ever before. Employers should therefore ensure that they understand how to address work refusals properly to ensure the health and safety of workers and minimize exposures under the OHSA.
This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.