Return to Work from COVID-19

Part 3: Steps of a Workplace Refusal

In Parts 1 and 2 of this series, we discussed the health and safety considerations that employers and employees should be thinking about as they prepare to return to work from COVID-19 shutdowns. We explained that employers have a duty to ensure a safe worksite, and employees have the corresponding right to work in a safe place. But what happens if an employee genuinely believes it is not safe for them to return to work? When, and how, can an employee refuse to work?

Here in Part 3, we outline the steps of a refusal to work in the context of returning to work amidst COVID-19.

Step 1: Refusal pursuant to the Occupational Health and Safety Act (the "OHSA")

In Ontario, the right to work in safe place is protected by the Occupational Health and Safety Act (the "OHSA"). Specifically, Part V of the OHSA details the steps that must be followed by both employees and employers when an employee refuse to work on the grounds of safety.

For an employee to refuse to work they must have a reasonable basis to believe that the workplace is likely to endanger them. An employee cannot arbitrarily refuse to work.

An employee must promptly report their refusal to work and the circumstances of the refusal to their employer. In the context of COVID-19, the employee should outline their concerns about the danger in their specific workplace.

It is important to note that right to refuse unsafe work is restricted for certain employees working in prescribed occupations.

Step 2: Employer Investigation

The employer must investigate the refusal in the presence of the refusing employee. If the workplace has a designated employee who represents workers or a health and safety representative, this representative must also be present for the investigation.

While the investigation is ongoing, the employee is to remain in a safe place that is as reasonably near as possible to his or her workstation and remain available for the employer for the purposes of the investigation. These requirements should be applied in light of COVID-19. Depending on the circumstances of the worksite, it may be appropriate for the employee to remain at home but make themselves available via phone or email. The employee is entitled to receive their normal pay while the employer is investigating the refusal.

After the investigation, the employer will determine what, if any steps, are necessary to remedy the unsafe situation. These measures should be implemented as soon as reasonably possible. If the safety issue is resolved, the employee must return to work.

Step 3: Continued Refusal

The employee can continue to refuse work, however, if they have reasonable grounds to believe the work is still unsafe. At this point, the employee, a representative of the employee, or the employer must notify the Ministry of Labour of the refusal.

Step 4: Ministry of Labour Investigation

The Ministry of Labour will send an inspector to investigate the refusal to work. This investigation will be done in consultation with the employer, employee, and any representative of the employee.

During the inspector's investigation, the employee must remain available to the inspector. The employer may assign the employee reasonable alternative work. In the context of COVID-19, this may include performing non-public facing tasks or performing employment duties from home. The employee is entitled to pay when performing alternative work or otherwise remaining available. Placing an employee on an unpaid suspension or unpaid leave may amount to reprisal. As discussed below, reprisal is prohibited.

While waiting for the inspector's decision, the employer may ask another employee to perform the refused work. The second employee must be informed that the work was refused and the reason why it was refused.

Step 5: Decision

The inspector will decide whether the circumstances that resulted in the work refusal amount to dangerous circumstances. The inspector will communicate his decision, in writing, as soon as is practicable.

If it found that that no dangerous circumstances exist, the employee must return to work. If it found that dangerous circumstances do exist, the employer must make the changes necessary to eliminate the danger. After the changes have been made, the employee must return to work.

Step 6: No Reprisal

The OHSA specifically prohibits employers from discipling employees for refusing to work. The employer cannot penalize, dismiss, or otherwise discipline the employee for exercising their rights under the OHSA.

However, once the safety issue is resolved, the employee cannot continue to refuse to work. An employer may be entitled to treat an employee who unreasonably refuses to return to work as having resigned.

Conclusion:

The OHSA outlines a clear process for refusals to work on the grounds of safety. This framework is designed to protect both employees and employers. For employees, it provides a clear right to refuse unsafe work and imposes obligations on the employer to investigate and remedy dangerous working conditions. For employers, it provides step-by-step instructions on how to resolve refusals to work. Following these steps will help limit exposure to liability down the road.

Lee Workplace would be happy to answer any questions you may have during this tricky time.

Also read: Part 4 to this Return to Work from COVID-19 series.

*Written by Hannah Goranson