Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will discuss under what circumstances can an employee refuse to attend work if the employee believes that he or she will be exposed to coronavirus at work and what is the process of refusing to work.

Please note that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

We will talk about an employee’s right to refuse work, under the Occupational Health and Safety Act in Ontario. We will discuss which employees cannot refuse to work and what the procedure to refuse work is. The right to refuse work arises under Section 43(3) of the Occupational Health and Safety Act. This section provides different circumstances in which an employee can refuse to work.  Because we’re discussing only coronavirus, we will focus on one subsection, which essentially says that if the physical conditions of the workplace or part thereof, in which an employee is attending work or is expected to work and that physical condition can endanger the employee or another worker; then in those circumstances the employee can refuse to work. Based on this condition, it can be stated that if an employee believes that by attending work, by attending place of employment, the employee will be exposed to Corona virus and that could be a situation which is covered under this particular subsection and may allow the employee to refuse work.

Who are some of the employees who cannot refuse work?  Section 43(1) specifies that these employees are members of the police force, firefighters, employees who work at a correctional facility or institution and employees who work in a health-care related environment—whether it be hospitals, sanatoriums, long-term care facilities, rehab facilities, mental health institutions, ambulance services, first aid clinics, etc.; also employees who work in ancillary services, with respect to health-care facilities. For example, food services, laundry services, technical services, power plants, etc. If employees work there, then they are not permitted to refuse work.   This is primarily because either the nature of their work is inherently dangerous—in the sense that it may expose them to the risk, that is the reason for their refusal to work or that by refusing to work the health and safety of other individuals may be at risk. And therefore these employees are not allowed to refuse work.

Let’s talk about the procedure for refusing work. There are two stages to refuse work. Let’s talk about stage one. In stage one, the worker will report the safety issue, the concern to the employer. The worker during that time, while the employer is investigating the issue, will remain in a safe place. For example; if there is a place within the workplace that the worker could be safe, then that is the place where the worker will remain. If not, then the worker will stay at home. The employer will investigate and resolve the workers concern and if the issue is unresolved then inquiry goes to stage two. But if the matter is resolved, then the worker returns to work. Now please note, that while the employer is investigating and resolving the issue in stage one and if the worker is staying at home or absent from work because of this issue, then worker is paid—considered a worker who is attending work and he or she needs to be paid the normal wages, as if the worker was attending work.

With respect to stage two: if the safety issue is unresolved, then either the worker or the employer or an agent of employer can contact the Ministry of Labor. The Ministry of Labor will send an Inspector to review the workplace.  Then the inspector will determine whether the safety issue is resolved or not.

The process of refusing to work is rather straightforward, but its application is a bit complex because it depends upon the specific circumstances of that workplace. Generally speaking what you can keep in mind is to assess what kinds of measures the employer has taken to protect its workforce. For example, if an employee or a worker can work from home or remotely, has the employer allowed its employees to do so? Has the employer minimized meetings and conferences to minimize workers exposure to corona virus?  Has the employer instituted good workplace policies to protect its workers? For example, ensuring that people who may have potential exposure are quarantined at home.  People who have exposure are off from work and not exposing other employees. In circumstances where you are unclear, whether you may be allowed to refuse work or whether your employees may be allowed to refuse work, it may be a good idea to contact the Ministry of Labor to seek their position with respect to your work environment.

Thank-you for watching.