Return to Work from COVID-19

Part 2: Employees' Rights and Obligations to Report to Work


Not Quite Business as Usual

In Part 1 of this series, we discussed occupational health and safety obligations applicable to businesses as they gradually re-open from COVID-19 shutdowns. The flip side to that is what if the workers are concerned about their health and safety risks as they go back to work? What if there are other circumstances preventing workers from going back?

Must employees return to work, or can they refuse to go back? What can they ask employers to do? Here in Part 2, we discuss employees' rights and obligations in the context of returning to work from COVID-19.


General Principles

1.Health and Safety at the Workplace

Employees have the right to work in a safe place. Each province has occupational health and safety laws protecting this right. In Ontario, the applicable legislation is the Occupational Health and Safety Act (the "OHSA").

Under the OHSA employees can refuse unsafe work. If an employee refuses to work due to safety concerns, the employer must take steps to investigate the refusal and, if possible, resolve the safety issues.

The right to refuse work is not unlimited, however. The employee must genuinely believe they are endangered, and this belief must be reasonable in the circumstances. If the employer has followed proper safety procedures the employee must return to work.

As long as the employee's concerns were genuine and reasonable, they cannot be punished, disciplined, or dismissed for exercising their right to refuse work. However, if the employee unreasonably refuses to return to work, the employer may be entitled to treat the employee as having resigned.

2.Human Rights

Each province also has human rights legislation protecting employees' right to not be discriminated against in the workplace. In Ontario, the applicable legislation is the Human Rights Code.

The law recognizes that in order to prevent discrimination, it may be necessary to treat differently situated employees differently. Employers thus have an obligation to adjust their practices to accommodate the needs of employees, if the needs are related to certain, protected grounds, such as medical needs or family care obligations.

If an employee requests accommodation on the basis of a protected ground, the employer has to take reasonable steps to accommodate the employee up to the point of undue hardship.


What of COVID-19?

With COVID-19 being a communicable disease and a worldwide pandemic, employees are rightfully concerned about the continuing risk of community spread and exposure. Employees may have personal circumstances that are preventing them from freely leaving their homes. In the face of these continuing issues, is it reasonable for an employee to refuse to work? The answer is, yes and no.

Whether a refusal based on COVID-19 is reasonable will depend on a few things, namely, the specific circumstances of the employee, the nature of the work, and the safety measures adopted by the employer.

1.Employee Circumstances

Although COVID-19 has impacted everyone, it has not impacted everyone in the same way. Certain employees may face greater challenges in returning to work than others.

Employees with Child and/or Elder Care Obligations: Employees may find themselves required to return to work while care facilities, such as daycares and schools, remain closed. In this situation, affected employees may have the options to refuse to work or request accommodation. Caregiving responsibilities can trigger an employer' s duty to accommodate. If requested, employers may be able to modify work schedules, permit continued work from home, or provide personal protective equipment.

Higher Risk Employees: Employees who are at a higher risk due to pre-existing medical conditions are also rightfully concerned. Some employees have not needed to have this conversation with their employers because of generalized business closures. Now would be a good time to raise this concern. Like caregiving responsibilities, medical conditions can trigger the duty to accommodate. If the employer is unable to accommodate, it may be reasonable to refuse work.

2.Nature of the Work

Another important consideration is the nature of the work and the workforce. The level of public interaction, and the ability to sanitize and physically distance in the workplace, amongst other factors, will impact whether it is reasonable to refuse to work. Employees who work in higher risk workplaces may be able to request that the employer take additional safety measures, such as providing personal protective equipment.

3.Safety Measures

A crucial factor will be the safety measures implemented by the employer. The appropriate protective measures will vary depending on the nature of the business and industry. However, if an employer has followed public health authority guidelines and adopted appropriate safety measures it may not be reasonable for an employee to refuse work. We provided information on what safety measures the employer has to provide in Part 1 of the series.


Talk to One Another

Before making any hasty decisions, employees should first address their concerns with their employer. Ask employers what safety measures they have put in place and how they will protect employees. Chances are the employer has a return to work plan that answers those questions. If they haven't done so already, employers may be willing to adopt flexible solutions to accommodate the needs of both parties.


Conclusion

In light of COVID-19, employees understandably have concerns about returning to work. Employees are encouraged to communicate openly with their employer and proactively inquire about how they will be protected when they head back to work. If an employee continues to believe they may not be safe in their workplace, they should consult an employment lawyer about their options, including their right to refuse work.

Next, read Parts 3 and 4 of this Return to Work from COVID-19.

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


*Written with the assistance of Hannah Goranson, Student-at-Law