OBJECTIVE BASIS REQUIRED FOR REFUSING WORK AMID COVID-19
Business re-openings mean employees across the province are summoned back to work. This blog post attempts to address the health and safety concern in returning to work amid Covid-19.
Can I Refuse To Go Back To Work If I Feel Unsafe, Or Will I Lose My Job?
The answer will be different for everyone. For unionized employees, it may be best to contact your union. For non-unionized employees, it may be best to communicate your concern with your employer or obtain advice from legal counsel.
Part III of Ontario’s Occupational and Health Safety Act (“OHSA”), RSO 1990, c O.1, dictates the legal obligations in which employers and other shareholders have in taking every reasonable precaution to protect workers from injury and illness – including that from an infectious disease. The Ministry’s Deputy Minister may appoint inspectors to ensure that employers, directors and officers comply with the Act and its regulations. If required, inspectors will issue orders requiring employers to comply with health and safety laws within a specific timeframe.
Ontario Workers Have Three Fundamental Rights Under The OHSA:
- The right to know about work hazards.
- The right to participate in solutions in eliminating and/or controlling hazards.
- The right to refuse unsafe work.
While Ontario’s OHSA outlines certain employee rights in refusing unsafe work, Ontario’s Ministry of Labour maintains “subjective fear of Covid-19” is a high bar to reach. What this means is, employees still need to report to work. If employees feel unsafe upon attending work because employers failed to follow government-imposed safety guidelines and precautions, employees must immediately tell their supervisor they believe the work is unsafe.
The workplace parties must then follow a specific work refusal process under section 43 of the OHSA. Usually, the employer will investigate the complaint and attempt to resolve the health and safety issue. However, if employees still have reasonable grounds (meaning having some objective basis for continued refusal) in believing safety issues are unresolved, they may contact the Ministry of Labour to carry out an investigation.
Key Steps In Work Refusal*
*this Diagram Is Adapted From The Worker’s Health And Safety Centre Via Whsc.on.ca.
Takeaway: refusal to go to work without reasonable cause may be grounds for employers to terminate your employment. Moreover, if you are presumed to have quit or resigned from your job, you may become ineligible for CERB.
Final Note
The Ministry of Labour noted, “while the COVID-19 situation is changing rapidly, the legislation and regulations used to govern Ontario’s workplaces are not.”
The law varies drastically from industry to industry. And more often than not, employment matters involve an interplay of different legislations making generalizations rather tricky.
If you have any questions regarding this blog or need employment legal advice, MEHDI AU LLP is a full-service firm that serves clients across the GTA and Ontario.
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