Note: This article applies to employees in the province of Ontario who work for provincially regulated employers and are subject to the Ontario Occupational Health and Safety Act. Different rules apply for those who are federally regulated (including employees of banks, airlines and telecom companies). This general legal information (not legal advice) is subject to change, and there may be exceptions based on your specific circumstances. You should obtain independent legal advice before taking any action which may impact your legal rights. If you are an employee or an employer and need legal advice regarding the right to refuse unsafe work, an OA lawyer will be pleased to assist you with your situation. Workers in Ontario have the right to a safe and healthy workplace, and employers have a corresponding duty to take all reasonable precautions to provide such an environment. That duty extends to protecting workers as much as is reasonably possible against contracting contagious diseases like COVID-19. The right to refuse unsafe work is one of the three pillars of the Occupational Health and Safety Act (“OHSA”) (the others being the right to be informed of workplace hazards and the right to participate in the health and safety process). It is a significant exception to the general rule prohibiting employee insubordination. Importantly, workers have the right to refuse work (meaning a particular job or task) that they have reasonable grounds to believe may endanger their own health or safety, or that of another worker. Under the OHSA, workers may refuse to do work that is unsafe because of danger posed by:

• The equipment they are required to use
• The physical state of the workspace
• The likelihood of workplace violence
• The fact that the equipment that they are required to use or the workplace itself is outdated and violates the OHSA.

Inadequate personal protective equipment (“PPE”), or training in properly using it, may constitute reasonable grounds for refusing work, particularly if the employer is not abiding by current, local public health guidelines. The existence of the pandemic generally, however, is probably not sufficient to justify taking the very serious step of refusing to work. However, if an individual worker’s characteristics make them more likely to contract COVID-19 (for example, if the worker is 65 or older or has underlying medical conditions that put them at increased risk), these may be considered in determining whether their grounds for refusal are reasonable. In a similar vein, it is essential to note that the Ontario Human Rights Code (“OHRC”) protects workers from discrimination based on disability, and the equal treatment of employees with and without disabilities can constitute discrimination when it results in a different outcome based on that difference. So, if providing all employees with access to the same PPE and other protective measures adequately protects employees who do not have a disability but not employees who do have a disability, that could constitute discrimination. Employers should note that while failing to take reasonable steps to provide employees with a safe and healthy work environment can result in fines paid to the Ministry of Labour, discriminating (even unintentionally) against workers with disabilities may result in civil litigation or a human rights application filed against the employer. Similarly, employers are not permitted to retaliate against workers who exercise their right to refuse unsafe work. Firing workers who refuse unsafe work for being “whistleblowers” may expose the employer to wrongful dismissal claims, or reprisal complaints under the OHSA.

What Steps Should a Worker Who Wishes to Refuse Unsafe Work Take?

A worker who wishes to refuse to do unsafe work should immediately notify their supervisor or employer of their refusal, and of their reasonable grounds for believing that the task will endanger their own or another worker’s safety. It is a good idea to document this in writing, and to make it very clear that their reason for refusing work is safety. This will help ensure that the employer or supervisor does not mistake the exercise of their right for insubordination. Workers who are part of a union should also inform their union representatives. Workers should note that the OHSA requires that they remain as close to their workspace as is safely possible so that they are available for the investigation, which will follow unless their Collective Agreement or employment contract permits them to be temporarily reassigned to other work until the investigation is complete. Workers who refuse dangerous work are entitled to payment during the investigation.

How Should an Employer Respond?

Employers who receive notice of a worker’s refusal to work must immediately launch an investigation into whether reasonable grounds existed for the employee’s refusal to work. The investigation must be conducted jointly with a worker health and safety representative or committee member who represents workers. If the joint investigation finds that there are no reasonable grounds for the worker’s refusal, the worker may be required to return to work. If the investigation supports reasonable grounds, the OHSA mandates that the investigation moves on to its second stage. In the second stage, the employer, worker, or health and safety representative (or similar) must notify the Ministry of Labour of the investigation results. An additional investigation by a Ministry inspector is then conducted. These inspections usually occur in person, however, some inspections occurring during the pandemic have taken place over the phone. As in the first stage of the investigation, if reasonable grounds for the worker’s refusal are not found, the worker may be required to return to work. If reasonable grounds are found, the Ministry inspector may make recommendations or orders to ensure that the employer is taking all reasonable precautions to protect worker safety before the worker returns to work.

Can Any Employee Refuse Unsafe Work?

The OHSA recognizes that some employees work in jobs that are inherently dangerous (think of police officers, firefighters, and frontline healthcare workers). It also acknowledges that workers in these positions who refuse unsafe work would endanger the lives of those who rely on them, including the public, their patients, and their co-workers. For this reason, some workers (including those listed above) may not refuse unsafe work if the hazard is an inherent part of their job or if doing so would endanger the health or safety of another person.

Is There Any Precedent for Work Refusals During an Epidemic?

While the current pandemic has left many areas of law (including the law around the right to refuse unsafe work) in a state of uncertainty, Ontario’s previous experiences with infectious disease, such as during the SARS outbreak, offer some guidance regarding how work refusals may now play out. Employers who complied with local, current public health guidance (for example, that provided by their province, municipality, and the Public Health Agency of Canada, or “PHAC”) were generally found to have complied with their statutory duty to provide a safe and healthy environment. A similar outcome is likely here. That means that employers are likely to avoid a finding that they have failed to comply with their statutory duties if they offer workers the ability to:

• Engage in social distancing
• Self-isolate as required by their jurisdiction (for example, self-isolating for 14 days after any travel outside of Canada is currently necessary in Ontario)
• Wear the PPE recommended for their particular job
• Not attend work if they have any symptoms of COVID-19
• Practice good hygiene (i.e. have access to handwashing stations and hand sanitizer).

Promoting open communication with workers may alert management to particular employee concerns, permitting problems to be dealt with proactively rather than reactively, minimizing conflict and loss of productivity. O’Neill Associates is proud to support students from the Bora Laskin Faculty of Law (Lakehead University, Thunder Bay) through the school’s unique Integrated Practice Curriculum (IPC) Program. The IPC, a Bora Laskin variation of the “articling” program students complete at most other law schools, matches students with law firms to work side-by-side with experienced lawyers for one full semester during the third and final year. This article was written by Erin Chochla who will be completing her Placement with OA in the upcoming academic year.