Given the ongoing COVID-19 pandemic, Ontarian employees may have safety concerns about attending the workplace, particularly where the business is considered essential but there is no option to work from home. Employees and workers may be concerned about exposure to COVID-19 from their colleagues, customers, or clients, from their commute, and may have further concerns due to being vulnerable or having a family member who is vulnerable to the disease. As such, they might consider the work to be unsafe and want to refuse to report to work.
In Ontario, employees have the right to refuse unsafe work, as we have outlined in our article “Legislative Changes to Workplace Protections amid COVID-19 Pandemic”. As an employer, it is important to know how to deal with a refusal of unsafe work as the pandemic continues.
The Right to Refuse Unsafe Work
Under the Occupational Health and Safety Act, employees have the right to refuse unsafe work where they have reason to believe the conditions of the workplace may endanger them or there is a dangerous non-standard condition in the workplace. However, certain prescribed jobs are exempt, such as those that are dangerous by nature or those where refusing work would put lives at risk. These exempt jobs include emergency services and healthcare workplaces.
When an individual refuses what they believe to be unsafe work, the work refusal will be investigated by a Health and Safety Officer who will issue a decision based on the specific facts surrounding the refusal. An employee does not need to directly prove that they are at risk in order to refuse unsafe work.
Addressing Workers’ Concerns
If a worker expresses concern regarding their safety at the workplace due to concerns about the virus, employers should make sure they listen and address the concern. Employers should find out what specifically is causing the employee to believe the work is unsafe, and outline to all workers what measures the employer has in place to maintain a safe workplace.
Employers should not punish a worker for voicing their concern, as it is contrary to the Occupational Health and Safety Act.
If a worker refuses what they believe to be unsafe work, employers should:
- Follow the procedures set out by the Occupational Health and Safety Act;
- Investigate the concern; and
- Take necessary action to correct the concern.
Employers should cooperate with the Health and Safety Officer investigating the workplace refusal.
Addressing Workers’ Workplace Refusals
If an employer has been actively taking steps to maintain a workplace safe from COVID-19 based on the recommendations of local public health agencies, such as the Ontario Government, employers may ask workers and employees to return to work. While each case is dependent on the facts and circumstances, following these recommendations will help demonstrate that your workplace is in fact safe.
An example of this is a recent attempt by a dozen TTC workers who refused unsafe work over sanitation concerns at a facility. The Ministry of Labour deemed the TTC’s sanitation efforts to be sufficient, and as such, the workers were ordered to return to work.
During this time, employers are expected to act reasonably and should carefully consider whether safety concerns are supported by facts and by the provincial and federal government guidelines. Employers may want to consider implementing further steps to ensure the health and safety of their workers to remove any potential risk of danger.
The ongoing COVID-19 pandemic has left many with a lot of questions. If you are an employer dealing with an unsafe work refusal, or an employee that has refused work due to feeling unsafe and want to know your rights, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at 1-(800) 771-7882 or email us at firstname.lastname@example.org and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email email@example.com.
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