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After months of mass closures due to the COVID-19 pandemic, provinces are beginning to allow the reopening of workplaces and various facilities. Many employees are, understandably, concerned about their health in the workplace COVID-19, particularly because the virus has shown a propensity to easily transfer among individuals in close proximity, including on public transportation and in the workplace. 

With the above in mind, some may be asking themselves “Can I refuse to return to work if I still have concerns about catching COVID-19?”, and the answer, in short, is that it depends on your circumstances.

More specifically, employees may claim that they believe working in an environment where COVID-19 still has the potential to spread may pose an imminent danger to their health and, as such, that they have the right to refuse work. However, if an employer has met the safety requirements and precautions outlined by the respective health authorities, the employee is generally required to return to work.

If an employee chooses to not return to work even though appropriate safety precautions have been put in place, the employer would be within their rights to consider the employee’s actions a form of insubordination and/or resignation.

It is important to consider that if an employee is deemed to have resigned, they will not be eligible to collect termination pay and/or severance pay compared to if they were to have had their employment terminated. Additionally, if an employee has voluntarily left their role, they will not be eligible for regular employment insurance (“EI”) benefits unless they are able to prove that their reason for leaving can be considered involuntary, such as constructive dismissal.   

If an employee has concerns about returning to the workplace during Stage 2 of the reopening of the province of Ontario, they would be wise to seek out advice from a Toronto employment lawyer before taking any action.

WHAT QUESTIONS SHOULD I ASK MY EMPLOYER BEFORE I RETURN?

Before returning to work, employees may wish to reach out to their employers and inquire as to whether safety precautions will be put in place to minimize the spread of and exposure to the virus.

Employees should also consider asking whether protective personal equipment (PPE) such as masks and gloves will be provided upon arrival, or if they are expected to bring these items themselves.

If an employee is considering refusing to return to work because of their concerns regarding COVID-19, it is important that they make an effort to inquire about any safety precautions being put in place as they would not want to come off as acting in bad faith and/or taking advantage of the circumstances of these extraordinary times.

WHAT IF I DO NOT BELIEVE THAT MY WORKPLACE IS SAFE?

Employees who believe that their employers have not adequately implemented safety precautions to make the workplace as safe as possible can formally begin the process of a work refusal.

The process involves the employee informing their employer of their refusal to work, and from there, the employer must attempt to rectify the problem.

If the employee’s concerns cannot be adequately addressed, the Ministry of Labour will determine whether the workplace is in fact safe, and subsequently whether the employee must return to work. During the investigation process, however, the employee is not obligated to work.

Deputy Prime Minister Chrystia Freeland has emphasized that employees across Canada can refuse work in an unsafe environment and still have access to the Canada Emergency Response Benefit (CERB) while it is available. Additionally, no Canadian worker at any time should feel obligated to work in unsafe conditions.

If you have any questions relating to COVID-19 and your employment, whether you have been temporarily laid off, wrongfully dismissed, called back to work, resigned because of safety concerns, or otherwise, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at malhert@sultanlawyers.com.


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