What Employers Need to Know about the Right to Refuse Unsafe Work During the COVID - 19 Pandemic
This is not legal advice, and employers should not make decisions or take action until they receive legal advice from a competent legal advisor.
What can Employers do to provide a Healthy & Safe Workplace?
Under the “general duty clause” of the OHSA, and similarly in other jurisdictions, an employer has a general obligation to take reasonable precautions to protect the health and safety of its workers. In the context of an infectious disease outbreak, an employer could potentially face prosecution for violating the general duty clause by taking insufficient measures to protect workers. An employer can also expect workers to exercise their right to refuse unsafe work based on what they perceive as inadequate protections.
During the COVID-19 pandemic, it is essential that employers implement appropriate protective measures by following the latest guidance of their municipal and provincial public health agencies, as well as the latest guidance of the Public Health Agency of Canada (PHAC). Based on current PHAC guidance these measures should include the following: restricting individuals from the workplace based on the official criteria for recommended or required self-isolation, including returning from travels outside Canada; requiring employees who have even mild COVID-19 symptoms, as recognized by PHAC to stay at home, contact public health authorities, and follow their directions; encouraging social distancing to reduce transmission, which may include facilitating remote work arrangements and rearranging the workplace for other workers as practical.
Employers should also be conducting ongoing workplace health and safety assessments and working with their internal health and safety committee or representative, as applicable, to keep policies and practices updated. Under occupational health and safety legislation, employers are also generally required to keep workers informed of known workplace risks and hazards, and more broadly provide them with the information necessary to protect their health and safety.
By applying such measures, employers may fulfill their general duty and be better prepared to demonstrate that unsafe work refusals are unnecessary in their workplace.
The COVID-19 pandemic is a dynamic situation and workers are understandably concerned about their safety. At this uniquely sensitive time, it is especially important for employers to be visibly proactive in providing a safe workplace to alleviate these concerns and keep their workforce composed. Employers must also be aware of their specific obligations in the context of an unsafe work refusal, and ensure it is handled appropriately and in full compliance with legal requirements.
While the right to refuse unsafe work is always a possibility, that is all the more reason for employers to keep their workplaces safe to ensure such refusals are ultimately short-lived.