Can I refuse to work because of COVID19? Coronavirus and work refusals in Ontario

Can you refuse to go to work during the coronavirus pandemic? Many Ontario workers are worried that their work or their workday commutes will expose them to coronavirus. Some of these worries are well-placed, while for others it’s (understandable) anxiety more than true risk of exposure to COVID19.

NOTE: This post is general information, not legal advice. Employees considering a work refusal or who have faced negative consequences because they refused work due to COVID19 should contact an employment lawyer or their union as soon as possible. Work refusal is complicated and the legal issues raised by COVID19 in the workplace are new and unusual.

Employees or employers with concerns about staying healthy or keeping their employees and customers safe should seek information from doctors, nurses and scientists, not lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public Health Ontario.

The Occupational Health and Safety Act gives workers the right to refuse unsafe work. In fact, it gives workers an obligation to report equipment or working conditions that are likely to place them or their co-workers in danger. We all have a duty to keep the workplace as safe as possible.

The Occupational Health and Safety Act also gives workers the right to know about any potential hazards in their workplace and the right to participate in identifying health and safety concerns at their workplace.

CAN ALL WORKERS REFUSE UNSAFE WORK?

However, there are exceptions for workers like police officers, firefighters, corrections officers, workers in juvenile detention facilities, hospital workers, long-term care home, psychiatric institutions, mental health or rehabilitation facilities, residential group homes or other facilities for persons with behavioural or emotional problems or a physical, mental or developmental disability, an ambulance service or first aid clinic or station, a government or licensed lab, or in the service of some of these operations (i.e. a laundry service for a hospital). These workers do not have the right to refuse or stop work if the danger they’re concerned about is a normal condition of their employment.

For example, it is dangerous but a normal condition of a firefighter’s employment that they go into burning buildings. Most other workers would be able to refuse a direction to go into a burning building, but firefighters generally cannot. These workers are also not allowed to refuse work if that refusal directly endangers the life, health or safety of another person. For example, if the firefighter refuses to go into a burning building to attempt to save a child. That doesn’t mean firefighters can never refuse unsafe work. For example, if their normal personal protective equipment (PPE) isn’t available or is damaged, a firefighter might have grounds to refuse work. This would depend very much on the circumstances, though.

There are some other exceptions under various Ontario laws. For example, workers in schools or daycare facilities can’t stop working if it means leaving children unsupervised and unsafe. In addition to these rules, some workers have professional obligations because of their professions. People like nurses, doctors, and lawyers may have professional duties that occasionally require them to do work that other people would legitimately be able to refuse. Their professional colleges can provide them with specific information about these ethical considerations.

HOW DOES A WORKER REFUSE UNSAFE WORK BECAUSE OF CORONAVIRUS?

If a worker believes that their work equipment, physical working conditions, workplace violence or anything that they need to use or operate at work is likely to endanger themselves or another worker, they must promptly report their refusal to work to their employer or supervisor.

The basic steps are:

1. Promptly report the circumstances of the refusal to employer or supervisor.
2. Employer or supervisor “forthwith” investigates the report.  They should do so in the presence of the worker and, if there is one, a member of the workers’ health and safety committee or a health and safety representative or another worker who is selected by the worker’s union or workers in the workplace because of their knowledge, experience and training.
3. After the investigation, the employer can advise the worker that they believe that the work is safe or take steps to make the work safe.
4. If the worker has reasonable grounds to believe that the work is unsafe, they can still refuse to work. The employer or the worker must then notify the Ministry of Labour.
5. A Ministry of Labour Inspector will investigate the work refusal in consultation with the worker and the employer or their representative.
6. The Ministry of Labour Inspector will decide whether the work is likely to endanger the worker or some one else and give a decision in writing to the worker and the employer as soon as practical.
7. If the Ministry of Labour Inspector decides that the work is not likely to endanger the worker or any one else, the worker is expected to do the work.
8. If the Ministry of Labour Inspector decides that the work is unsafe, the Inspector will direct the Employer to take steps to make the work safe. Once the Employer has taken these steps, the worker is expected to do the work.

If you have a union, your union steward, union representative or union business agent should be able to help you navigate this process.

WHAT HAPPENS DURING THE INVESTIGATION?

During the employer’s investigation and any Ministry of Labour inspection, the worker is expected to remain at work during their regular working hours. They need to be available to the investigators, whether it’s the employer’s investigator or the Ministry’s inspector. They should be at a safe place near their work station. However, the employer can assign the worker reasonable alternative work during their regular work hours or give the employee other directions. The employee should continue to be paid during the employer’s investigation, provided they come to work as instructed.

While the Ministry of Labour’s Inspector is investigating, no worker should do the potentially dangerous work unless they have been advised of the refusal and their co-worker’s reasons for refusing the work. This information must be shared in the presence of a workers’ health and safety representative selected by the workers in the workplace or by their union.

Workplaces with Joint Health and Safety Committees are subject to slightly different procedures. They can apply to the Ontario Labour Relations Board if a joint stoppage of work won’t sufficiently protect workers.

WHAT IS A HEALTH AND SAFETY REPRESENTATIVE OR A JOINT HEALTH AND SAFETY COMMITTEE? DO WE HAVE ONE?

All provincially regulated Ontario workplaces with more than 5 employees should have at least one non-managerial employee health and safety representative. This representative must be selected by the workers.

Workplaces with more than 20 employees must have a Joint Health and Safety Committee. So too must smaller workplaces where employees deal with certain regulated or designated substances, including biological, chemical or physical agents which may be dangerous. Some short-term construction projects do not need a Joint Health and Safety Committee.

WHAT IF THE INSPECTOR DOES NOT AGREE WITH THE WORKER?

Generally, the inspector’s decision is the final word. However, it’s illegal for your employer to retaliate against you for raising genuine concerns about workplace safety. You don’t have to be right to be protected from retaliation, but you do have to act reasonably and in good faith. Employees who abuse the work refusal process can be disciplined. Likewise, employees who refuse to work after an investigation because of a subjective but unfounded fear can be disciplined.

Illegal reprisal can include disciplining, firing or harassing an employee because they raised legitimate concerns about occupational health and safety. Employees who experience retaliation can apply to the Ontario Labour Relations Board for an order that they get their job back, be compensated for lost wages, have discipline deleted, or be paid damages (though these are normally modest).

WHAT DOES THIS MEAN FOR COVID19?

The current situation is very unusual. Lawyers, unions and Ministry Inspectors normally look at past cases (aka precedents) to decide whether something is unsafe or illegal. This is a challenge when we are dealing with something new, like the coronavirus.

At the same time, workplaces deal regularly with the flu and other contagious diseases. The Ministry of Labour released a guide to health and safety during flu season back in 2010 that may still be helpful today. It reminds employers that they have to take “every reasonable precaution” to protect workers’ health and safety. What is reasonable will depend on your job, your workplace, your personal circumstances (for example, are you immunocompromised?), your community and current medical or public health information.

WHAT IF I’M IMMUNOCOMPROMISED?

Workers who are immunocompromised may have additional protections under the Human Rights Code, which prohibits discrimination on the basis of disability. Disability discrimination includes a refusal to provide reasonable accommodation to the point of undue hardship. It can also include a refusal to reasonably consider requests for accommodation. While recent measures mean that employees may not need a sick note to take sick leave or stay home with sick family members at this time, they may need to provide support for requests for disability accommodation. Employees also need to bear in mind that the Human Rights Code does not guarantee you the perfect disability accommodation or one of your choosing, only one that is reasonable. Both employees and employers need to remember that what is reasonable accommodation or undue hardship in one case may not be in another.

This can be complicated, and we’re all dealing with new issues right now. If you are unsure about your rights or obligations under the Human Rights Code or Occupational Health and Safety Act, you should contact an employment lawyer or your union as soon as possible.

WHAT IF I HAVE CORONAVIRUS OR HAVE BEEN ORDERED TO SELF-ISOLATE?

As a result of the declaration of a state of emergency in Ontario and new legislative amendments, employees have the right to job protection if they have been ordered by public health to stay home. Please read our FAQ post (linked below) to find out more.

If your employer is pushing back on your self-isolation, contact your union or an employment lawyer as soon as possible.

RESOURCES

The Ministry of Labour has a handy flowchart on work refusals here. 

The Ministry of Labour’s guide to health and safety during the flu season can be found here.

The Ministry of Labour’s Info Sheet on Work Refusals can be found here. 

You can learn how to file a health and safety complaint online here.

You can learn how to report an occupational injury, illness or death here.