COVID-19 is creating considerable uncertainty in the workplace, especially in situations where employees are unable to work from home and must continue to attend at their employer’s worksite every day. In an ongoing effort to keep employers informed of their health and safety related rights and obligations as employers, we have outlined key considerations surrounding an employee’s right to refuse unsafe work.

What is the right of refusal, or right to refuse to perform unsafe work?

All workers have a right to a working environment that protects their health and safety. Occupational health and safety laws across the country, generally speaking, 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 jeopardy. In such cases, they may exercise a right of refusal which, depending on the jurisdiction, will trigger a variety of obligations on the part of the employer.

What is the threshold for the exercise of such a right?

The right to refuse unsafe work is very serious and cannot be exercised lightly by employees, nor can it be used merely to solve workplace problems. The right to refuse work is considered an exceptional mechanism and, as such, provincial (or federal, in the case of the Canada Labour Code (CLC)) health and safety officers (HSOs) must assess the factual matrix of the refusal on a case by case basis to determine whether the facts are persuasive.

The specific language used to trigger a right to refuse unsafe work varies based on jurisdiction. For example, in Québec[1] and Ontario[2], the threshold is that of a “danger”, and not merely a risk, while British Columbia’s sets the threshold at “undue hazard”[3]. For federally regulated employers, the CLC sets the threshold at the existence of a danger. These different thresholds may result in a specific worker being justified to refuse to perform their work in one jurisdiction but not in another.

What procedure is to be followed?

The process for work refusals depends on the jurisdiction and the provisions of its health and safety legislation. Generally speaking, the most common steps to be followed include, but are not limited to the following:

The worker must advise the employer that they believe the work is unsafe, giving reasons for their refusal.

The employer may then have an obligation to advise other parties of the refusal, such as, for example, a health and safety representative, a union representative and/or a health and safety committee.

The employer must then examine the situation, determine whether the right to refuse unsafe work is justified or not, and advise the employee (and any other required parties) of its decision and the reasons for it. Some jurisdictions may require that the conclusion and/or reasons be set in writing.

If the employee or the other party disagrees with the employer’s decision, they can contact the HSO who will then investigate the concern. The employer may also contact the HSO if the employee maintains their refusal to perform the work.

If the employee, employer or third party disagree with the HSO’s decision, they can appeal the decision to a competent Board or Tribunal.

What is the impact of a decision by a HSO?

Generally, the decision of the HSO is of immediate application and may only be reversed by a competent Board or Tribunal. Therefore, if the HSO orders that measures be adopted, the employer will have no choice but to comply with that order if it wants its employees to continue the work. If the HSO orders the work to be stopped, the employer will have to follow the instructions.

What can 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 worker who refuse work still be paid?

Yes, a worker who exercises a right of refusal must still be paid until the situation is resolved with the employer, or until the HSO renders a decision. The worker must generally remain available to perform alternative duties which may be assigned by the employer in the interim.

Are there any exceptions to the right to refuse unsafe work?

Yes - there are generally two exceptions to the right to refuse unsafe work. First, dangers or hazards which are inherent to the worker’s work or which are normal conditions of the worker’s employment will generally not give rise to a right of refusal. Second, when the right to refuse would directly endanger the life, health or safety of another person, the worker is usually prohibited from exercising his right to refuse unsafe work. These two exceptions could include, for example, police officers, firefighters and health care workers with regards to certain dangers or certain situations.

Can an employee refuse to perform work based on the COVID-19 pandemic?

It is possible that the COVID-19 pandemic may create the basis for a legitimate work refusal. An employee’s right to refuse to perform work as a result of COVID-19 will be contingent upon factors including (but not limited to) the following:

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 exercised;

the age and health of the specific worker;

the type of workplace where the worker usually performs his functions;

the specific field of work and his or her normal duties or tasks;

the number of workers at the workplace and whether or not social distancing is possible;

the measures adopted by the employer to prevent the transmission of COVID-19, including workplace hygiene and personal protective equipment (PPE), where applicable;

whether or not an employee of the employer has been diagnosed with COVID-19;

whether the worker or the circumstances fall in one of the legislative exceptions to the right to refuse unsafe work; and

any other factually relevant considerations in assessing whether there is a hazard, a risk, a danger, etc.

What else should I know?

In most jurisdictions, employers have an obligation to advise workers of known health and safety hazards or risks associated with their work, and to provide adequate information and instruction to enable them to perform their jobs safely. Accordingly, it is important for employers to conduct an ongoing health of safety assessment of the workplace when responding to work refusals and considering the availability of alternative work, as well as other health and safety measures.

Conclusion

We understand that this is a challenging time for all employers and workers. Our National Labour & Employment Group is available to assist clients on a 24/7 basis. If you are dealing with a work refusal or otherwise need assistance, please reach out to any member of our team whenever you need to.

[1] S-2.1 - Act respecting occupational health and safety, section 12.

[2]Occupational Health and Safety Act, R.S.O. 1990, c. O.1, section 43.

[3]Occupational Health and Safety Regulation, section 3.12.