Employer Obligations and Employee Rights Ryan Wozniak, Senior Vice President of Legal, Peninsula
Ryan Wozniak, Senior Vice President, Operations and Legal, Peninsula Canada
Ryan graduated from Osgoode Hall Law School in 2005 and was called to the Ontario Bar in 2006.
Prior to joining Peninsula, Ryan practiced litigation for 14 years with a particular emphasis on employment law. Ryan has appeared as lead counsel before all levels of court throughout Canada, including the Ontario Superior Court of Justice, the Court of Appeal for Ontario, the Commercial List court, the Ontario Labour Relations Board, the Human Rights Tribunal of Ontario, the British Columbia Supreme Court, the Tax Court of Canada and the Supreme Court of Canada, as well as before federal labour arbitrators.
Canadian businesses will soon start reopening and recalling employees back to work. However, what should employers do if an employee refuses to return due to health and safety concerns related to COVID-19? When it comes to work refusals, employers must fulfil certain health and safety obligations under their provincial Occupational Health and Safety (OHS) legislation. The outcome of the work refusal will depend on the nature of the refusal and what the employer will do to resolve the employee’s concerns.
Under applicable federal or provincial OHS legislation, workers in Canada have the right to refuse work they have reason to believe is unsafe. Workers cannot de disciplined or terminated for exercising this right in good faith. However, the reason why an employee might refuse to work is important in determining whether the refusal is justified.
An employee might refuse to work if their workplace is subject to a lockdown order and cannot legally operate. If recalled, the employee could make a viable argument that going back to work would constitute a breach of provincial order. In this case, the employer would likely not have cause to discipline or terminate the employee for obeying the law.
Businesses that are legally permitted to reopen and resume operations may have employees that refuse to come into work due to concerns about their health and safety. For the employee’s claim to be justified, there must be evidence that the employee’s working conditions present a risk their health and safety.
If the employee is refusing work based on general anxieties about leaving their house, travelling and being at work during the pandemic, they might have a hard time demonstrating a special risk specific to their work duties. In these circumstances, however, the employer may have a duty to inquire as to whether the anxieties are related to any underlying physical or mental disability, which may then trigger the employer’s duty to accommodate the employee under human rights legislation.
A work refusal for the purpose of OHS legislation may be justified if it is based on valid concerns about a lack of protective measures being implemented in the workplace by the employer. For example, to protect workers from the risk of contracting COVID-19, employers might make use of distance markers and protective barriers, provide personal protective equipment, and follow protocols limiting how many individuals can be inside the work location at a given time. If none of these measures are in place and employees will be working in close contact with other employees or customers, the employee might have a reasonable basis to claim that the employer did not take sufficient reasonable precautions to protect their safety.
The employer must investigate the claim, involving the workplace health and safety representative (if any), and report back to the employee with a finding either that the employee’s complaint is unsubstantiated and that no steps need to be taken, or that the employee’s concern is entirely or partially substantiated and the employer will take reasonable steps to address the hazards that put the employee at risk. Employers are obligated to take every reasonable action to protect the safety of their employees under applicable OHS legislation.
If the employee is still unsatisfied with the protective measures put in place and the matter cannot be resolved within the business, the employer must contact the applicable OHS regulatory body. The OHS body will send an officer to investigate and determine whether the employee’s concern is substantiated, in which case the officer may point out further steps the employer can take to mitigate hazards for the employee.
If the officer deems that all hazards were dealt with appropriately or that there was not enough evidence to suggest danger to the employee, the officer may decide that this refusal is not reasonable and order the employee back to work. If the employee still does not return to work, the employer might be able to discipline the employee.
However, employers must be careful when considering disciplinary action against employees who refuse to work because they fall into the high-risk category due to pre-existing health concerns, such as a compromised immune system or a mental disability, such as anxiety, that has become harder for the employee to manage due to the pandemic. In this case, the employee might be able to claim that they have a disability protected under applicable human rights legislation, which the employer would be required to accommodate to the point of undue hardship. This might involve letting the employee use vacation days or take unpaid time off work until it is safe for the employee, or until the employee is otherwise medically fit, to return to work.
To summarize, employers should assure employees of their safety when reopening the workplace by taking a phased approach during recall to full capacity, implementing preventative measures in the workplace in line with government recommendations, and keeping employees protected with appropriate health and safety practices such as frequent workplace cleaning, training, and providing personal protective equipment. Employers should attempt to resolve work refusals internally while keeping their OHS and human rights obligations in mind. Continued refusal to work after a return to work order has been issued from an OHS officer may, in certain circumstances, be treated as a disciplinary concern.
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