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COVID-19 continues to present a serious challenge to the Canadian public and economy. Even while governments and companies work towards finding an effective vaccine, efforts continue to support a recovery from the devastating impacts of the initial economic shutdown.

Provinces continue to assess risk levels of COVID-19 and update related economic policies. Ontario, for example, is in Stage 3 of recovery, meaning that more businesses and organizations have been cleared to re-open. With the re-openings, many employees have been recalled to work. Despite legal obligations to minimize risks to employees relating to COVID-19, many workers have fears of returning to work, concerned about the safety of their workplaces and the possibility of contracting COVID-19.

Given the uncertainties that are ahead with respect to how the pandemic will continue to play out, Sultan Lawyers is providing insight with respect to how employees and employers should manage work refusals. This subject is important not just in relation to employment but also as it impacts rights relating to harassment, discrimination, termination of employment and severance pay.   

The Right to Refuse Work and the Associated Process

In Ontario, the Occupational Health and Safety Act (“OHSA”) allows an employee to refuse work which he or she believes is unsafe. Unsafe means that an employee believes the conditions of the workplace or any equipment or machinery which they operate may put them at risk of being endangered.

Not all employees have the right to refuse work. Specifically, in prescribed occupations where risk is an inherent part of the job, the right to refuse work is limited. This includes occupations such as police officers, firefighters, employees of correctional institutions and similar institutions/facilities, and workers in the healthcare sector.

The following outlines the procedure that must be followed in instances where an employee refuses unsafe work.

When an employee considers their work to be unsafe, the law states that they should take the following steps:

  • The employee reports their refusal to work to their supervisor or employer (this report may also be made to the appropriate safety representative and/or management representative). Once the employee has reported they are refusing work because they feel unsafe, they may remain in a safe place.
  • Once the report has been made, the employer or supervisor is expected to investigate the safety concerns in the presence of the worker and the worker safety representative.
  • There are two possible results once the above investigation has been completed:
  1. The issue will be deemed to be resolved and the worker can go back to work; or
  2. The issue will not have been resolved and further steps must be taken.

If the issue has not been resolved, the employee who made the complaint can elect to contact the Ministry of Labour.   

The following steps will occur once the Ministry of Labour has been contacted:

  • A Ministry of Labour Inspector investigates the workplace and associated concerns in front of the employee, safety representative and supervisor or management representative.
  • The Inspector will provide a decision in writing.
  • If any changes are ordered, those changes must be made. Once they’ve been completed, the employee may return to work.

While an investigation by a Ministry of Labour Inspector is being completed, the following steps may take place:

  • The worker that has refused work may be offered other work if they are authorized to engage in such work/activities.
  • The refused work may be offered to another employee, however, management must notify the employee that the offered work is available due to a work refusal.

This notification must be made in presence of:

  • A member of the joint health and safety committee who represents workers; or
  • A health and safety representative for the company. 

Takeaways for Employees

COVID-19 is an extraordinary situation. While it is important for employers to be aware of their general obligations to maintain a safe working environment, it is equally important for employees to know that they are able to refuse unsafe work if they believe they may be endangered in any way. For this reason, if an employee has a reasonable concern with respect to their safety in the workplace, these concerns should be brought forth to the appropriate personnel at their workplace.

The OHSA mandates that employees be provided with a safe workplace, and further prohibits any acts of reprisal from an employer when an employee attempts to assert these rights. An act of reprisal includes any disciplinary action or threat that is intended as retaliation for enforcing one’s rights under the OHSA. This may include warnings or termination of your employment. Look out for more information on this in our next blog!

Takeaways for Employers

Employers would be wise to ensure that they are following guidance set forth by the Public Health Agency of Canada and that these measures are put in place prior to employees being recalled to work, and once the operations of the business have resumed.

This may include:

  • Encouraging employees and customers to continue to engage in social distancing to reduce the spread of COVID-19;
  • Ensuring regular cleaning of high-touch surfaces throughout the workplace;
  • Providing hand washing stations or ensuring that hand sanitizer readily available for employee use; and
  • Mandatory use of a mask for all employees.

If you have questions about refusing unsafe work, or if you have been punished, fired, or otherwise discriminated in attempting to assert your rights, contact Toronto employment and severance lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com


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