The Ecstasy (And Agony) Of Reopening – Work Refusals And Covid-19

Derek T. Noyes
ERICKSONS LLP

May 25, 2020

As Ontario steps closer toward fully opening its economy despite the ongoing pandemic, provincially regulated employers will likely experience questions from employees, and have their own, related to the right to refuse unsafe work.

From the outset, it bears noting that any article on this topic will necessarily be an overview in nature, and gloss-over some potentially significant nuances that may affect the outcome in a particular situation. Therefore, while the information that follows may be of interest, it is important to discuss any specific instance with a lawyer prior to taking any action. Further, unionized workplaces will likely have their own processes in place to deal with health and safety matters, outlined in the collective agreement. This article will focus more generally on the right of refusal in the non-unionized work environment.

Many employees will be understandably fearful of returning to the workplace during the pandemic. With some limited exceptions, under the Ontario Health and Safety Act (the “OHSA”) workers in Ontario are entitled to refuse to perform work which poses a “danger” to the worker’s health or safety, unless such dangers are an inherent part of the job. Under section 50 of the OHSA, workers are protected against reprisals for raising legitimate health and safety concerns, or for refusing to perform their duties in the circumstances. Of course, the potential of contracting deadly diseases like COVID-19 at the workplace could be a danger to an employee’s health and safety. However, a danger-free workplace is not the same as a risk-free workplace. While the difference between a “danger” and a “risk” may be semantics, in law semantics is critical.

Once a safety concern is raised by an employee regarding the workplace, a process is triggered under the OHSA, whereby the employer first is to investigate the concern of the employee to determine what, if anything, can or needs to be done to remedy it. The concern therefore should be made or noted in writing with the specific concerns made clear.

The employer is to advise the employee of the results of the investigation and either: a) acknowledge the danger and rectify it; or b) advise that sufficient abatement strategies are in place or are not required (but see additional comments, below). Once the danger is rectified or the employee is advised that no steps need to be taken, the employer may then direct the employee to return to work.

If the employee is not satisfied with the investigation and response of the employer, the employee may continue to refuse, at which time the Ministry of Labour is to be notified. Once notified, the Ministry of Labour will assign a health and safety inspector to conduct an investigation.

While normally the Ministry investigation would involve a site visit, under the circumstances of COVID-19 (and especially when a concern relates directly to the disease) such visits will likely be rare. Therefore, clear policies detailing the steps and measures the employer is taking and what is expected of the employees to limit or prevent the spread of COVID-19 will be crucial to assist the inspector in making a determination about the danger of the disease in the workplace.

Following the Ministry’s investigation, the inspector will issue a decision with respect to the refusal, which will either:

a. Recognize the danger and order actions for the employer to rectify the situation (which may include a complete work stoppage in certain situations); OR
b. Find that appropriate actions have been taken by the employer and that the risk (if any) does not rise to the level of a danger.

If the investigator determines that “b” is the appropriate finding, the employee will be required to return to work. If the employee then refuses a (now third) direction to return to work after the investigator has determined there is not a “danger” of COVID-19 at the workplace, the employee may then be disciplined for his or her failure to comply.

It must be noted that the employee cannot and must not be disciplined for having raised a workplace safety concern, even if that concern is not ultimately shared by the Ministry. Any disciplinary measures taken must be focused solely on the employee’s failure to return to work as directed. Employers would be wise to follow progressive discipline, rather than rushing straight to termination (and as noted further below, there may be other legitimate and protected reasons for the employee continuing to refuse to return, unrelated to health and safety).

ADDITIONAL POINTS:

The finding of the inspector will likely be influenced primarily by the level to which the employer has adopted the recommendations of the local, provincial and federal health authorities with regards to preventing the spread of COVID-19 in the workplace, The prevalence of the disease in the community and the particular risk to the employee (e.g. considering the employee’s age, or underlying health conditions) may also factor into the inspectors assessment of the danger.

Due to the SARS-CoV-2 virus’ ability to spread asymptomatically (and possibly to exist on surfaces long-term), this illness will be at least a risk for every workplace for the near- to long-term. Employers therefore are strongly encouraged to implement the recommendations of local, provincial and federal health authorities, as much as possible. Fortunately, many of the most effective preventative measures (hand hygiene, masks and physical distancing) are readily implementable at most worksites. The Thunder Bay and District Health Unit has more information on preventative measures for workplaces that should be consulted.

A further question of course is what happens while this process is playing out? If the employee is able to work from home, he or she should be permitted to continue to do so, and continue to be paid for this work. If the employee is not able to perform the duties from home, and no other safe work is available based on the concerns raised in the refusal, the employee may have to be placed (or continue) on a layoff. Please note, there are risks with laying off employees, so if the employee has not already accepted a layoff due to COVID-19, this action should be taken cautiously and only after consulting with an employment lawyer.

While the work refusal is being investigated, another employee may also be asked to perform the work of the refusing employee. The other employee must be advised of the existence and nature of the work refusal and may also believe that the work is too dangerous and likewise refuse.

TAKE AWAYS:

• Under the OHSA, employees may refuse work where the employee fears it may expose him or her to COVID-19 and employees are protected from being disciplined for raising such concerns.
• Employers are therefore strongly encouraged to implement as many of the recommendations of health authorities as they reasonably can – employers would be wise to assume the disease is a threat to their worksite and operations going forward.
• Written policies based on the recommendations of health authorities should be drafted and communicated to staff so that they are aware of the measures being taken to protect their health.
• If work is refused, a transparent investigation is to be conducted – following which, if the refusal continues, the Ministry of Labour will investigator further and make a determination.
• If the Ministry determines the risk of the disease is not a “danger”, the employee will be required to return to work – if the employee continues to refuse, only then may he or she be disciplined for the refusal.
• The entirety of the circumstances must be carefully considered before any disciplinary action is taken.

ONE LAST NOTE:

As with so much else in Employment Law, the right to refuse work may not be as black and white as it may appear. Before disciplining an employee for failing or refusing to return to work, careful attention must be paid to not only the requirements of the OHSA but to other legislation, such as the Human Rights Code, which will not have been considered by the investigating officer. (For what it may be worth, of course, the “danger” of the employee losing their CERB payment is not a danger to health and safety, and therefore not a legitimate reason to refuse to return to work.)

The above article is for information purposes only and is not to be taken as legal advice.

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