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This week the Ontario Government announced its three-stage plan for re-opening the economy. Given this announcement and the reality that employers will soon see their workplaces returning to some semblance of “normal”, employers will be planning for a gradual return to work for employees who have been away from the workplace during the COVID-19 pandemic.

As employers plan for a return to work, employees may refuse to return to the physical workplace on the basis that they are afraid of contracting COVID-19. As an employment law firm, we are watching the rapidly evolving circumstance carefully so that we can provide relevant and up-to-date information.

The following provides the top 3 issues we believe are important with respect to work refusals and in particular in relation to the Occupational Health and Safety Act (“OHSA”).

1. Employee’s Right to Refuse Work and an Employer’s Obligation to Protect Health and Safety

Pursuant to the OHSA:

  • Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of their employees.
  • Employees are entitled to refuse to work when they have reason to believe that the “physical condition of the workplace”, or any equipment, machine, device or thing they use or operate, is likely to endanger them. Employees do not need to prove that they are actually at risk in order to initiate a work refusal.

*We recommend that all employees consult with an employment lawyer before refusing work. Doing so will ensure that they have taken necessary measures on their part. This can, in effect, help eliminate the chances of a layoff or wrongful dismissal from the workplace.

This is especially the case for “prescribed” workers, such as firefighters, police officers and certain healthcare workers, as these workers are generally not entitled to refuse unsafe work if the safety concern is inherent in their work or is a normal condition of their employment, or if their refusal to work would directly endanger the life, health or safety of another person.

2. Employer Obligations if Work is Refused

If an employee is recalled to work but exercises their right to refuse unsafe work, the employer is expected to follow the investigatory and reporting processes as outlined in the OHSA. Employers may, in certain circumstances, also be required to adopt measures to eliminate or reduce any danger in the workplace.

Employees are protected from any act of reprisal/negative treatment in response to a work refusal, whether it be intimidation, discipline, a layoff, or termination of employment.

If an employee continues to refuse to work, a government health and safety inspector must attend at the workplace to investigate the work refusal and decide whether the refusal is warranted. If the inspector finds the statutory threshold to justify the work refusal is not met, the refusing worker will be expected to return to work. If the inspector finds otherwise, they will typically order remedial measures.

3. COVID-19 and New Opportunities for Work Refusals

Given the extraordinary nature of the COVID-19 pandemic, employers should expect that employees will claim that a return to work is unsafe based on what they perceive as inadequate protections against COVID-19 in the workplace.

To reduce liability related to work refusals, employers would be wise to consider taking the following actions:

  • Only allowing employees to return to work if it is safe to do so and if a return to work is in line with public health and government recommendations;
  • Continuing to follow the guidance of public health authorities in developing and implementing workplace protection policies.
    • The Ontario Government has indicated that they will be rolling out instructions for employers to follow in order to maintain the health and safety of their employees as they return to work and so it will be important for employers to follow these instructions;
  • Continuing to restrict individuals from the workplace based on the official criteria for recommended or required self-isolation, including returning from travels outside Canada;
  • Requiring employees to stay at home, contact public health authorities, and follow their directions if they have symptoms of COVID-19; and
  • Promoting good hygiene practices and ensuring the regular cleaning of high-touch surfaces throughout the workplace.

As the economy re-starts and employees return to work, employers should anticipate work refusals and make sure that they are aware of their specific obligations to ensure such refusals are appropriately handled in full compliance with occupational health and safety legislation.

For further information on any of the above or other questions, whether relating to returning to work during COVID-19, leaves of absence, layoffs or terminations of employment, please contact Toronto employment lawyers Sultan Lawyers at mlahert@sultanlawyers.com or 416-214-5111.


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