Join Safia Lakhani on Wednesday May 13 for her webinar “Considerations for employers during COVID-19” where she will discuss the right to refuse work among other topics.

For those working during the pandemic ‑ and for those who will return to work in the coming weeks and months – the question of work refusals remains front of mind. Under the Occupational Health and Safety Act RSO 1990, c. O. 1 (Section 43), a worker in Ontario may refuse work where s/he has reason to believe that:

 (a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself [emphasis added];

(b.1) workplace violence is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.  R.S.O. 1990, c. O.1, s. 43 (3); 2009, c. 23, s. 4 (2).

Under the OHSA, a complaint by an employee triggers an internal investigation by the employer, during which time the  worker is required to remain in a safe place “as near as reasonably possible” to his/her work station. If the internal investigation yields a finding that the workplace is safe, the employee may return to work unless s/he has reasonable grounds to believe that the grounds for the complaint remain of concern. In those cases, the Ministry of Labour investigates the workplace and renders a decision in writing. Over the course of the Ministry’s investigation, an employee may be offered other work provided that it does not conflict with a collective agreement. If ordered by the Ministry, changes must be made to the workplace. If the employee continues to dispute the safety of the workplace following a ruling by the Ministry, s/he may appeal the decision of the Ministry to the Ontario Labour Relations Board (OLRB).

A similar process is spelled out in the Canada Labour Code, the legislation that governs federally regulated workplaces, with some variations.

The interpretation of these provisions during a pandemic is of interest. Could the “workplace” be extended to include the means of arriving there (i.e. public transit)? Can work be refused if an employee has a generalized fear of contracting Covid-19? Will employers have to provide masks and other forms of personal protective equipment to staff?

Based on the definitions contained in the legislation, risks that arise in transit to work would not likely trigger an ability to refuse work. The OHSA defines the workplace as “any land, premises, location or thing at, upon, in or near which a worker works.” There is no precedent for expanding this definition to include the commute to work, though employers would do well to note that remote work locations fall within the definition of a “workplace” and are likely subject to the relevant health and safety provisions.

While few decisions have been reported with respect to the coronavirus, rulings issued during the SARS outbreak in 2003 give some sense of how work refusals would likely be treated. In a decision rendered under the Canada Labour Code, the Board noted that for a finding of danger, the health and safety officer would have to form the opinion that:

• The potential hazard or condition or future activity would likely present itself;
• An employee would likely be exposed to the hazard, condition or activity when it presents itself;
• The exposure to the hazard, condition or activity would likely cause injury or illness to the employee exposed thereto; and,
• the injury or illness would likely occur before the hazard or condition could be corrected or activity altered. (Canada Labour Code Part II Occupational Health and Safety Michael Chapman applicant and Canada Customs and Revenue Agency respondent)

That case pertained to a work refusal by a Customs Officer who stated that his employer had failed to provide him with personal protective equipment and information to protect himself from infection. The Board found that there was no evidence of a SARS infected passenger, or any risk of exposure that could result in injury or illness, and accordingly that the work refusal by the customs’ official was not justified.

While each case is fact specific, this decision, and others, suggests that absent an identifiable present risk of transmission OR an employer’s failure to abide by public health guidelines, employees will not likely be able to refuse work. Still: these are unprecedented times, and there may be an evolution of the existing workplace legislation. Employers should keep up to date on this area of law to ensure that they are meeting their obligations to maintain safe and healthy workplaces as we initiate a gradual return to work.

Filed in: Employment Law

Tags: COVID-19, right to refuse work