Pandemic dangers: Properly managing work refusals in Canada today

Over 1,700 cases reported in Ontario. Canada’s count in the thousands. States of emergency declared. Non-essential work suspended. Many of those still working across Canada are either performing essential work, working remotely, or both. 

The evolving COVID-19 situation has affected employers in different, but mostly difficult, ways. Indeed, employers across Canada are facing challenging times and addressing an influx of issues. Recently, we addressed the issue of temporary layoffs, an option some employers have had to consider in light of the coronavirus’ impact on the availability of work for some or all of their employees. Other employers, on the other hand, have active employees working remotely, with modified work conditions, and/or providing essential services to the public. The question now is: what to do if these employees refuse to work for reasons related to the coronavirus?

Work refusals, explained
Work refusals in Ontario
Work refusals in Alberta
Work refusals in British Columbia
Work refusals in the federal jurisdiction
Quebec
Work refusals in a COVID-19 world

Work refusals, explained

For what reasons can an employee refuse work?

It is always important to consult the specific wording of occupational health and safety legislation in your jurisdiction to determine the applicable rules. However, generally speaking, health and safety legislation across the country allows employees to refuse work in dangerous or unduly hazardous situations, depending on the wording of the governing legislation. Moreover, collective agreements may also have work refusal provisions that apply in specific work environments. Most commonly, work refusals arise when employees refuse to do something they have been asked to do, because of unsafe operating equipment, or the physical condition of the workplace. Depending on the circumstances, employees can refuse to do either a single task or a series of tasks at work, or can refuse to work altogether.  

To lawfully refuse work, employees must meet a certain threshold, which may vary depending on the jurisdiction. For instance, in some jurisdictions, such as Alberta, work refusals must generally be based on reasonable grounds. In others such as Ontario, the worker must only have a “reason” to stop work initially, which may be a subjective reason, and later the inspector determines if the situation is “likely to endanger” on a reasonableness standard. 

Refusing employees must therefore have legitimate health and safety concerns, and the evidence must demonstrate the employee is at risk or likely to be at risk because of a hazard or condition in the workplace. For this reason, employees cannot refuse work because of preference, taste or personal comfort. Determining what constitutes a danger is not always an obvious exercise. The analysis will therefore be situationally driven and will crucially depend on the evidence of the case.

The ultimate determination of whether or not a work refusal is reasonable in the circumstances is a question of fact, dealt with case by case. For example, in some cases, employees will face normal conditions in the course of their employment that carry some risk, such as those working in the emergency services sector. A work refusal in that context may not be justified, whereas it may be reasonable for employees working in other domains to do so under the same conditions.

What are the procedural steps of a work refusal?

In addition, employers should be mindful that the procedural requirements surrounding work refusals vary by jurisdiction. Generally speaking, refusing workers are firstly required to notify their supervisor or employer that their or another’s health or well-being is being endangered by a condition or hazard in the workplace. Once notified, the supervisor or employer must investigate to determine whether the circumstances justify the worker’s refusal to work. This is often done in the presence of the employee, joint health and safety representatives and/or a union representative. Based on this assessment, the employer then determines if the work refusal is justified. 

If the refusal is justified, the employer has a duty to ensure safety is re-established, and the refusing employee may thereafter return to work. If the refusal is not justified, the employee will be directed to return to work. If the employee disagrees with the employer’s decision and continues to refuse to work, the appropriate government regulator would appoint an inspector to conduct a health and safety inspection surrounding the circumstances of the refusal. Following the investigation, the inspector decides if the work refusal was lawful due to a condition or hazard in the workplace and sends his or her findings to the concerned parties. 

At all stages of the investigative process, health and safety statutes across Canada require that employees cooperate with employer investigations and, if applicable, the appropriate government authority. Regardless of the situation, before getting too deeply involved in any dispute related to work refusals, it would be wise to seek legal guidance on how the process works in any specific jurisdiction.
 
Reprisals
 
Lastly, when responding to work refusals, employees must be mindful that health and safety statutes in Canada generally prohibit employers from engaging in reprisals against workers who refused to perform unsafe work. Sanctions for non-compliance can be serious, the degree of which will depend on the jurisdiction and the facts at play.

Work refusals across jurisdictions 

Although there are many similarities, the legal landscape governing work refusals varies depending on the jurisdiction. Below is a summary of some of the most crucial aspects related to work refusals in Ontario, Alberta, British Columbia and the federal jurisdiction.

Work refusals in Ontario

Who can refuse work?

In Ontario, workers can refuse work if they have reason to believe they or others are likely in danger because of:

• the operation or use of any equipment, machine, device or thing;
• the physical condition of the workplace;
• workplace violence; or
• certain specific contraventions of the legislation or regulations.

That being said, a worker’s right to refuse work is not absolute. Understanding the circumstances in which a worker’s right can be limited requires a two-fold analysis:

• First, to restrict a worker’s right to refuse work, the employer must ensure they are listed in the legislation as a prescribed class of workers. These prescribed classes of workers include: (i) police officers, (ii) firefighters, (iii) workers employed in the operation of correctional institutions and similar institutions/facilities, and (iv) health care workers and persons employed in workplaces such as hospitals, nursing homes, sanatoriums, homes for the aged, psychiatric institutions, mental health centres or rehabilitation facilities, residential group homes for persons with behavioural or emotional problems or a physical, mental or developmental disability, ambulance services, first aid clinics, licensed laboratories, or in any laundry, food service, power plant or technical service used by workers listed above under (i), (ii) and (iii).
• Second, employers must ensure the circumstances relating to the refusing worker fall into one of the two limiting activities provided in the legislation. The first takes place when the circumstances are inherent in the worker’s work or are a normal condition of his or his employment. The second happens when the worker’s refusal would directly endanger the life, health or safety of another person. Interestingly, it should be noted the legislation does not expressly define “life, health and safety.”

If an employee is (i) part of a prescribed class of workers and (ii) falls under one of the two limiting activities, then he or she does not have the right to refuse work under Ontario’s Occupational Health and Safety Act.

On the ground, determining what set of facts can qualify as a limiting activity is not always easy. That said, decision-makers in Ontario have provided helpful guidance on the limits of a worker’s right to refuse work. For example, in one case¹, employees working in a detention centre complained that their employer was dismissive of the threat of weapons in the workplace. In the circumstances of that case, it was held the employees did not have the right to refuse work. Indeed, the Ontario Labour Relations Board held that, at the time, the circumstances were not outside the workers’ normal course of employment, but rather inherent in their work.

Can work refused by one worker be reassigned to another?

In Ontario, replacement workers may generally be reassigned previously refused work while the ministry’s inspector conducts his or her investigation, up until the government investigator’s decision is communicated to the concerned parties. However, replacement workers reassigned work to use or operate the equipment, a machine, device or thing under investigation must be advised of the refusal and reasons for it. 

While advising the replacement employee, the employer must ensure a prescribed person is present. These persons must be a (i) committee member who represents workers, if any; (ii) health and safety representative, if any; or (iii) worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them (hereinafter collectively referred to as Workplace Stakeholders).

On a related note, it is important to note that after work has been refused, the refusing employee is required to remain in a safe place as near as reasonably possible to his or her work station, and is available for the purposes of the employer’s investigation. The same requirement applies during an investigation conducted by a ministry inspector, unless the worker is assigned reasonable alternative work during his or her normal working hours, or if the employer gives the worker other directions. For unionized employees, if provisions in a collective agreement dictate otherwise, those provisions apply.

Do employers have to pay workers after they refuse work?

Although not expressly stated in the province’s legislation, the ministry’s view is that refusing workers should be paid until the employer completes its investigation and communicates its decision to the worker. What the legislation does require is paying wages of Workplace Stakeholders who are present (i) when a worker is reporting the work refusal to his or her employer or supervisor; (ii) during a ministry investigator’s investigation, or (iii) when a replacement worker is being reassigned work previously refused and properly advised in accordance with the legislation’s requirements, discussed above.

Work refusals in Alberta

Who can refuse work?

In Alberta, workers may refuse to do work or do particular work at a work site if they believe on reasonable grounds that there is a dangerous condition at the work site, or that the work constitutes a danger to the worker’s health and safety or to the health and safety of another worker or another person. 

Can work refused by one worker be reassigned to another?

In Alberta, employers are prohibited from reassigning previously refused work until they determine the work is not a danger to the health and safety of any person or that the dangerous condition does not exist. Replacement workers are entitled to be advised of the first worker’s refusal, the reason for the refusal, why the employer does not view the work as a danger to the health and safety of any person or that the dangerous condition does not exist, and the worker’s right to refuse the reassigned work.

Do employers have to pay workers after they refuse work?

A worker is entitled to be paid while a work refusal is being investigated. 

Work refusals in British Columbia

Who can refuse work?

Unlike in most jurisdictions where work refusals are a discretionary “right” exercised by workers, workers in British Columbia must not perform work or activities if they have reasonable cause to believe the work or activity creates an undue hazard to the health and safety of any person. Unlike other jurisdictions in Canada, the term “persons” not only includes workers and employees; it extends to any person whose health and safety is in jeopardy. 

Ultimately, the employee must have an objective basis for the refusal. Where an employee is a “susceptible worker” due to an underlying condition that would lead them to suffer an illness or sustain an injury where others might not be affected in the same way, their specific health condition must be considered in assessing whether they have reasonable cause to believe the work presents an undue hazard. To uphold a work refusal, there needs to be a clear connection between the undue hazard asserted by the susceptible worker, and his or her health condition.

Further, employers of unionized workplaces should consider any provisions of the collective agreement that may address the issue of refusal of work. 

Can work refused by one worker be reassigned to another?

As mentioned above, employees in British Columbia are prohibited from performing unduly hazardous work. Despite this, the applicable regulation in British Columbia does not expressly prohibit employers from reassigning work to a replacement worker and is silent on the issue. 

That being said, the reassignment of previously refused work should be considered with caution. If the reassigned work is eventually deemed unduly hazardous, the employer may be accused of pressuring employees into breaking their legal obligations not to perform such work in light of their reasonable cause to believe the work presented an undue hazard. Additionally, an employer may be accused of failing to observe its general statutory duties to ensure the health and safety of its workers, which includes remedying any workplace conditions hazardous to the workers’ health or safety, and ensuring workers are made aware of all known or reasonably foreseeable health or safety hazards to which they are likely to be exposed by their work. 

Do employers have to pay workers after they refuse work?

British Columbia legislation does not expressly specify whether employees should be paid during the investigative process following a work refusal. However, the worker must not be subject to any “discriminatory action” that would include any act or omission by an employer, or person acting on behalf of an employer, that adversely affects a worker regarding any term or condition of employment. Temporarily assigning an employee to alternative work during the investigative process, at no loss in pay, is not considered a discriminatory action. 

Work refusals in the federal jurisdiction

Who can refuse work?

Under the Canada Labour Code (the Code), federally regulated employees are entitled to refuse dangerous work, as long as they have reasonable grounds to believe it presents a danger. Specifically, employees can refuse work if (i) using or operating a machine or thing, (ii) working in a place or (iii) performing an activity constitutes a danger to themselves or to another employee. Of note, Parliament amended the definition of danger in 2014, now defined as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

However, workers are not permitted to refuse work where the work refusal would put the life, health or safety of another person directly in danger or the danger is a normal condition of employment. Moreover, the Code contains industry-specific provisions that may disallow employees from refusing work in certain circumstances. 

Specifically in the air and maritime sectors, employees working on an operating ship or aircraft who have reasonable grounds to believe danger would result from (i) the use or operation of a machine or thing, (ii) a condition existing in the workplace, or (iii) the performance of an activity, cannot automatically refuse to work. 

Instead, employees are required to immediately notify the person in charge of the ship or aircraft of the circumstances surrounding the alleged danger. After being notified, the person in charge, as soon as is practicable, will decide whether the employee can refuse work. While the ship or aircraft is in operation, the person in charge has the final say. In other words, once a ship or aircraft is in operation, employees cannot refuse work if the person in charge decides they must work, even if the employee disagrees.

Can work refused by one worker be reassigned to another?

Under the Code, the employer is permitted to reassign previously refused work to another employee, subject to three conditions. First, the replacement employee must be qualified for the work. Second, the replacement employee must be informed of the previous refusal and the reasons for it. Third, the employer must be reasonably satisfied that the replacement employee will not be in danger. Similarly to other jurisdictions, the Code also allows the replacement employee to refuse the reassigned work, if he or she has reasonable grounds to believe it is dangerous.

Do employers have to pay workers after they refuse work?

Yes, employers are required to pay wages and continue benefits to refusing employees until the investigative process is completed.

Quebec

For commentary on work refusals as they apply to Quebec, please click here and here. 

Work refusals in a COVID-19 world

So, how do these legal concepts apply to in cases of pandemic or outbreak? 

Although it is not yet clear to what extent COVID-19 will allow workers to legally refuse work, there are a number of helpful cases from the federal sector during the SARS outbreak about 15 years ago that provide some insight. 

In most cases, work refusals were found to be unjustified based on the available evidence. For example, in the federal jurisdiction, two investigation and control officers refused to work because they were afraid of contact with Asian clients coming from the airport, who might have been exposed to SARS. It was found that based on the evidence there was “neither an existing nor a potential hazard of contracting SARS” and so the work refusal was unjustified.² However, it should be noted this decision was made under the Code’s previous definition of danger, which, as mentioned previously, has since been amended to expressly include the concepts of “imminent” and “serious.”

What about teleworking employees?

Another COVID-19 reality is that, as noted above, many workers are now working outside their physical or traditional workplace, including employees working remotely from home as a result of the pandemic, or because the nature of employment is such that employees must travel and attend various locations to perform their work. Whether these employees attending multiple locations during their workdays can legitimately refuse work if faced with an unsafe situation will depend on the facts and jurisdiction. For example, in some jurisdictions, such as Alberta, the legislation provides that employees are only entitled to refuse work “at the worksite.” Others, however, do not expressly place geographical limits on where work refusals can lawfully occur. 

With that in mind, last December, the Supreme Court circumscribed an employer’s obligations over workplaces it does not control in a practical and reasonable manner. Specifically, the court held that the degree of control the employer exerts over the place at issue is key in determining whether an employer must perform all the health and safety tasks it would normally be required to perform in traditional workplaces over which they have control.

In this case, the court recognized that an employer’s health and safety obligations may vary depending on whether it has physical control over the workplace or not. It should, however, be noted that the court carefully considered the employer’s efforts to ensure proper and reasonable health and safety measures were in place at the depot, which in the end strengthened the employer’s position.

Staying well positioned 

Not every workplace challenge can be fixed by our legal regime. Objectivity is and will undoubtedly continue to often be elusive, and work refusals may manifest themselves regardless of any disciplinary or job loss consequences. Hence, human resources teams will need to enhance transparency, communication and consultation processes in particular around enhanced safety measures taken in their workplaces. 

In light of the pandemic, this exercise is ever more crucial, as the transmission of the virus remains obscure. Indeed, Canada’s Governor General recently commented that “this virus does not know borders, or timeline, colour or nationality. It zeros in on the most vulnerable, but it lives everywhere. Not just on people, but on doorknobs and table counters. It is a clever beast that we cannot underestimate.” And, indeed, workplaces are no exception.

For more information on layoffs across Canada, please check out our guide here.