COVID-19 & Employee Right to Refuse Unsafe Work

Peninsula Team

May 05 2020

The COVID-19 pandemic has created unique challenges for workplaces. As businesses update their HR policies for the pandemic, safety is a frequent and valid concern for employees and employers. 

As per the Canada Labour Code, employees have the right to refuse dangerous work if they have reasonable grounds to believe that it poses a threat to their health and safety. It is important to note that the belief that work is unsafe has to be substantial and not subjective.

On what grounds can employees refuse work?

Under the Code, an employee can refuse to work in a place that poses risk to their health and safety. They can also refuse to perform an activity or operate machinery that puts their safety at risk. 

COVID-19 is a workplace hazard. In the present circumstances, an employee can refuse to return to work if it endangers their health. For instance, if due to pre-existing health conditions or age, the employee falls into a high-risk category. 

An employee on a job-protected infectious disease emergency leave can also refuse work. If the employee's reason for refusal to work is a disability or any other grounds protected by human rights legislation, then it is valid too.

What to do in case the worker refuses to return to work?

If the employee is on a job-protected emergency leave, you cannot ask for a medical certificate. However, you may request other reasonable evidence such as proof that their child’s daycare closed or proof of recent international travel.

If the employee’s refusal to work is because of an alleged health and safety concern, you should:

  • Talk to the worker and find out if they have any special health condition that may put them at greater risk from COVID-19
  • Review the COVID-19 health and safety strategy and measures implemented at your workplace

If the employee still refuses to return to work, you can request the Occupational Health and Safety authority in your province to investigate the matter and hold an inspection.

If the OHS authority finds the workplace to be safe, then the employee’s refusal to work cannot hold. 

How to manage job abandonment?

If the worker does not have reasonable cause for refusal to work, you may, in certain circumstances, treat refusal to return as job abandonment and terminate the employment without notice or pay in lieu of notice.

The provisions for termination may vary across provinces. For instance, in Alberta, an employer may terminate an employment without statutory notice or pay in lieu if the worker fails to return to work within seven days of receiving the recall notice.

However, you must give the employee a reasonable timeframe to return to work. 

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

Yes. The Canada Labour Code lists certain exceptions regarding the right to refuse dangerous work. These include: 

  • If the worker’s refusal puts the life, health or safety of another person directly in danger
  • If the risk in question is part of the job, for example, in case of police officers or firefighters. 

Want to know your employer obligations surrounding COVID-19 health and safety?

For advice on staff management during the pandemic, call our experts today: 1 (833) 247-3652

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