Right to Refuse Unsafe Work | Author: Kimberley Sebag, Employment Lawyer
The Occupational Health and Safety Act (OHSA) governs matters related to workplace health and safety in Ontario. COVID-19 has injected dramatic changes to working conditions. This blog will help employees understand OHSA, and more specifically, the provisions that allow you to refuse unsafe work. To remain compliant with OHSA, employers open for business must evaluate every job function and workflow against the risks of a COVID-19 infection. While specific measures differ by sector, many employers have already upgraded workplace safety standards. Consequently, we now see employees wearing personal protective equipment, disinfecting surfaces and maintaining physical distancing.
The Right To Refuse Unsafe Work
In 2014, a landmark case argued at the Supreme Court of Canada, afforded employees the right to refuse unsafe work. Since then, we automatically assume it as part and parcel of every employment relationship. It does not matter whether this is called out in your employment contract, or not. Notably, the law excludes workers engaged in “inherently dangerous” professions, like policing, firefighting and frontline healthcare, for example. Affording them this right would risk the safety of society at large.
Legally, employees in provincially regulated industries fare better when seeking resolutions to workplace health and safety matters, compared to their federally regulated counterparts. This is because Ontario laws are much more nuanced with clear mechanisms to deal proactively with workplace health and safety matters.
Ontario’s Occupational Health and Safety Act
Under Section 43 of OHSA, provincially regulated employees can refuse work when:
- the equipment they operate poses a danger to themselves or a colleague;
- the physical condition of the workplace poses a risk;
- there is a risk of workplace violence;
- equipment or machinery does not meet modern standards.
While the COVID-19 pandemic is underway, not receiving personal protective equipment (PPE), such as masks and gloves, may count as sufficient grounds to refuse unsafe work at some workplaces. You can also make this claim if the quality of the protective equipment you receive does not meet the standards set out by health officials.
Workplace Health and Safety: Initiating Complaints
If you believe an unsafe situation exists at your workplace, then you can seek resolution by reporting it to your supervisor, who in turn must document your concern in writing. You may return to work once they address your matter. To prevent work stoppages on entire production lines, reasonable grounds for refusing unsafe work typically requires group consensus. The law may not consider an individual’s subjective opinion about a specific hazard, sufficient.
However, your personal circumstances count in some situations. If you have a pre-existing medical condition that puts you at a greater health risk compared to your colleagues, you may refuse work, even if the worksite seems safe for others. The Ontario Human Rights Code affords you supportive protection in this regard under disability grounds.
Ontario Ministry of Labour
Problems sometimes arise with resolving workplace health and safety matters when a supervisor investigates your complaint and finds nothing wrong. If you continue to feel unsafe, you have the right to refuse unsafe work without fear of reprisal. In this event, ensure you support your case with objective and reasonable facts and then report it to Ontario’s Ministry of Labour. They will appoint an investigator to mediate and issue a binding resolution, in writing.
A Ministry of Labour investigation can spark animosity and mistrust between employers and employees. When left to catalyze, it forms the genesis of toxic workplaces, harassment and bullying, constructive dismissal and wrongful dismissal. We strongly counsel all parties to keep emotions in check during this time and remain focused on objective facts. Do not make this personal about specific individuals.
Whistleblower Protection
Employees must note that OHSA does not offer you a civil remedy. Rather, it imposes fines against employers who breach health and safety laws. While you cannot sue for damages, the gloves come off if your employer fires you for being a whistleblower. And in this event, we would counsel you to commence wrongful dismissal proceedings. The law is very clear and obliges employers to take health and safety complaints seriously. Ontario’s Employment Standards Act forbids employers from threatening or firing employees for bringing such matters forward and imposes serious fines as well as damages for doing so.
Work Stoppages Under Dangerous Circumstances
As noted above, healthcare and similar frontline workers do not receive the right to refuse unsafe work under OHSA, even though they remain at an exceptionally high risk of contracting a COVID-19 infection. In its place, the law offers them the right to initiate work stoppages under dangerous circumstances. The process requires consensus between workers and management via certified representatives, who come together as a joint health and safety committee. A “dangerous circumstance” must meet three conditions:
- It contravenes OHSA;
- It poses a danger to workers;
- Delays in controlling the hazard would endanger workers;
The remedial process is similar to what we have described above. You must first notify your representative on the joint health and safety committee, who will, in turn, direct your supervisor to investigate and resolve the matter, promptly. If the risk persists, the employer’s representative will step in and conduct an independent investigation. To call a work stoppage, both parties must agree that the hazard meets all three conditions noted above, and their decision is binding on the employer. When they do not agree, they can take the matter to the Ontario Labour Relations Board for mediation. This process is often far from simple, requiring the parties to engage experienced legal counsel to present the cases, objectively.
COVID-19 Workplace Health and Safety: What About Your Family?
As we are presently witnessing, the COVID-19 contagion does not stop at only exposing frontline healthcare workers to dangerous circumstances at work. Such employees also carry a higher than normal risk of bringing it home with them at the end of their shift and infecting family members. If you are in this situation, then we advise you to take measures for self-isolating at home. Your rights under the “dangerous circumstances” provision may not extend to non-workers.
However, the Ontario Human Rights Code could protect you in a limited capacity. If you provide care for a family member, like a child or elderly parent, and consequently cannot self-isolate, then you can seek accommodation from your workplace on the grounds of family status. The Human Rights tribunal will step in when employers deny such accommodations. The process is simple and involves filing an online application for free. However, ensure you consult with an experienced employment lawyer for advice first. From there, you can decide whether to engage them to strategically drive your case forward for better chances of success, because your employer will definitely have legal counsel available for themselves.
Federal Employees: Right to Refuse Unsafe Work
Employees in federally regulated industries, like postal services, telecommunications and banking, are governed under a different set of statutes, the Canada Labour Code (CLC). Section 122 of the CLC regulates your right to refuse unsafe work. The provisions are relatively straightforward and allow you to refuse work if you discover hazardous conditions or activities that might cause an imminent or serious threat to your health or life. The test is higher because the threat must be serious, however, the law does not exempt any classes of workers.
Returning to Work After the Lockdown
As the province lifts emergency measures, many employees are now starting to contemplate how safe their work environment will be. COVID-19 will be new for your employer, too. The law obliges them to provide you with a safe workplace, and many will start implementing “new normal” policies and procedures for you to follow at work.
Our health and safety laws allow employees to play a direct role in this process. If you “feel unsafe” then open up a dialogue with your employer. The law protects you from reprisal for expressing your concerns and seeking resolution. However, it will not support you for not showing up for work altogether because of how you feel. In this event, your employer may have grounds to terminate you for the abandonment of your duties. If you disagree with your employer about subjective notions of safety, then you may escalate disagreements of this nature to the Ministry of Labour or seek legal advice, without fear of reprisal.
If you are unable to return to work due to a medically mandated quarantine, illness or caregiver status, inform your employer of your expected return to work date in writing. And if you require special accommodations due to health conditions, then we recommend you consult with your physician and take their written recommendations to your employer.
Seeking Legal Help
As governments introduce strict measures to “flatten the curve” of the pandemic, some employers have shut down and laid-off employees. Other workplaces continue to working remotely, albeit less efficiently because now, employees also need to care for children during work hours. Essential workers face conditions that expose them to a dangerous novel coronavirus without a cure or vaccine. And then, we have a growing number of families grappling with sick leave matters, caring for ill family members, or worse, dealing with death and bereavement. Without a doubt, all of this has put a strain on everyone’s mental health and challenged employment relationships on many fronts. Regardless of your situation, and even in these exceptional times, employers must operate within the boundaries of the law. If you are worried about your health and safety, or about your job security, this is precisely the time to seek legal advice.
Contact us for an opinion of your case. We can conduct the initial assessment over the telephone, and it is completely free.
About The Author
Kimberley Sebag, B.A., B.C.L., LL.B., is an employment lawyer with a practice dedicated to employee advocacy.
Lecker & Associates has successfully represented employees for over 35 years. If you believe your employer has breached your rights during the COVID-19 pandemic, contact us.
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