CAN AN EMPLOYEE REFUSE TO PERFORM WORK BASED ON THE COVID-19 PANDEMIC? – Wendy Ferguson

My firm, Stick People Solutions, has seen a spike in inquiries for advice pertaining to the refusal of work as a result of the extra COVID-19 measures and restrictions put in place across Canada. We are seeing considerable uncertainty in the workplace, especially in situations where employees are unable to work remotely and must continue to attend their workplace every day. In an ongoing effort to keep employers informed of their health & safety related rights and obligations, we are happy to provide some key considerations surrounding an employee’s right to refuse unsafe work.

What is the Right of Refusal?

All workers have the right to a working environment that protects their health & safety. Canadian OHS laws allow an employee to refuse to perform their work when they have reason to believe that their health, or that of other individuals, is in danger. As such, they may exercise a right of refusal which, depending on the jurisdiction, will trigger a variety of obligations for the employer.

The right to refuse unsafe work is very serious and cannot be exercised lightly by employees, nor used frivolously to avoid work. The right to refuse work is considered an extraordinary mechanism and provincial or federal Health and Safety Officers (HSOs) will assess all of the facts regarding the refusal on a case by case basis.

What procedures should be followed?

This depends on the jurisdiction and the provisions of its health and safety legislation, but generally speaking, the most common steps include:

• the worker advises employer they believe the work is unsafe, giving reasons for their refusal
• the employer advises their health and safety rep, union representative and/or the health and safety committee
• the employer examines the situation, determines whether the right to refuse unsafe work is justified or not, and advise the employee of its decision and the reasons for it
• if the employee or the other party disputes the employer’s decision, they can contact the HSO who will then investigate. The employer may also contact the HSO if the employee maintains their refusal to perform the work

Generally, the decision of the HSO must be followed immediately and may only be reversed by the Board or Tribunal (for example after an appeal). If the HSO orders that measures be adopted, the employer must comply with the order if it wants its employees to continue the work. If the HSO orders the work to be stopped, the employer will have to comply.

What should the employer do while waiting for the HSO to render a decision?

In some jurisdictions, employers may ask another worker to perform the work which was refused, but only if the employer informs the replacement worker of the other worker’s refusal and the grounds for refusing it. The alternative worker will then have the right to accept or refuse the work in question. Employers are generally authorized to direct that the worker who made the refusal remain at work and perform alternative duties at no loss in pay.

Should the worker who refused the work still be paid?

This is important – YES. A worker who exercises a right of refusal must continue to be paid their regular wages until the situation is resolved, or until the HSO decision has been provided. In the meantime the worker must remain available to perform alternative duties which may be assigned by the employer.

Exceptions to the Right to Refuse Unsafe Work

There are exceptions to the right to refuse unsafe work. Dangers or hazards inherent to the job, or which are normal conditions of the worker’s employment will typically not support a right of refusal. Also, when the right to refuse would endanger the life, health or safety of another person the worker is usually prohibited from exercising his right to refuse unsafe work. Examples would include police officers, firefighters, or health care workers with regards to certain inherent job risks.

How does this apply to the COVID-19 pandemic?

It is possible that the COVID-19 pandemic may support the basis for a reasonable work refusal. An employee’s right to refuse to perform work as a result of COVID-19 will be dependent upon factors including:

• the state of the COVID-19 situation in the worker’s particular city, region, province and workplace at the time the refusal to work is being performed;
•  the age and health of the worker;
• the type and nature of the workplace;
• the field of work and normal duties or tasks;
• the number of workers at the workplace and whether or not social distancing is possible;
• measures adopted by the company to prevent the transmission of COVID-19, including policies, workplace hygiene and personal protective equipment (PPE);
• whether or not a fellow employee has been diagnosed with COVID-19.

Employers have an obligation to inform workers of known health & safety hazards or risks associated with their work, and to provide information and instructions to enable them to perform their jobs safely. Accordingly, it is important for employers to conduct a health & safety assessment of their workplace when responding to work refusals and to consider the availability of remote or alternative work, as well as other health and safety measures. When in doubt, refer to the applicable OHS legislation in your jurisdiction.

#workplacesafety #covid19safety #refusal to work #hrsupport #hrbestpractices #albertaworkplaces #covid19andwork #ceos #shares

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Wendy Ferguson, BHRLR, CPHR is a Human Resources Professional and the owner of Stick People Solutions (SPS), providing simple, flexible and effective solutions for complex people issues. SPS specializes in employment legislation, policy, workplace investigations and recruiting solutions. Please follow Wendy Ferguson on LinkedIn for future articles about HR in Alberta. 

email: info@stickpeoplesolutions.com * web: www.stickpeoplesolutions.com