(This is not legal advice and is for informational purposes only.)
Since the emergency declaration resulting in a provincial-wide shut down, the Province of Ontario gradually permitted business to re-open in stages. All of Ontario is now at “Stage 3”, during which time businesses are permitted to reopen, with appropriate health and safety measures.
Despite the significant reduction in new COVID-19 cases, employees remain fearful that a return to work is unsafe due to concerns related to their daily commute to and from work. Many are asking whether they have a right to refuse work because of the safety issues relating to their daily commute on public transit.
Can employees refuse to work on the basis of their commute?
Both under the common law and under occupational health and safety legislation, employers have a broad legal duty to take every precaution reasonable in the circumstances for the protection of their workers. Employees are entitled to expect that their workplace is safe on return. Historically, an employer’s health and safety obligation has not extended to a worker’s commute to and from the workplace. Simply put, the employer cannot control the conditions of one’s commute or how an employee gets to and from the workplace.
Nevertheless, the employer has control over whether the worker physically attends at the workplace, where work can be completed, and when. There may be circumstances in which requiring an employee to physically attend at the workplace may be unsafe, due to safety issues pertaining to the worker’s commute. In certain circumstances, an employee may be justified in refusing to attend work because of legitimate safety concerns arising from commuting on public transit.
Factors for employers and employees to consider
If you are refusing to return to your workplace because of concerns related to public transit, whether that refusal is justified will likely depend on a variety of factors, including:
- Whether you or someone you live with is a heightened risk of serious illness or death due to COVID-19 (for example, if you or a member of your household is over 65 years of age, or has a pre-existing health condition)
- Whether some or all of the work can be completed remotely from home
- Whether tasks can be redistributed among staff to allow work from home
- The availability of affordable, alternate modes of commuting to and from work
- Who will pay for the cost of alternate modes of transportation
- The safety measures being taken by local transit to ensure the safety of passengers, such mandatory masks and reduced capacity on trains and buses
- Whether the work schedule can be modified to allow for travel during non-peak commuting times
- Whether the work week can be compressed to reduce the number of travel days;
- Whether you have personal protective equipment (PPE), such as face masks/gloves and hand sanitizer for use on public transit
Communication between you and your employer is vital. Ensure your employer aware of any special needs or restrictions that you may have by virtue of your personal circumstances. The employer is entitled to appropriate documentation to substantiate your specific restrictions or needs. Note that there may be a variety of solutions to ensure a safe commute. Be prepared to consider those options, short of refusing to attend work altogether.
If you are unable to perform the essential duties of the position, even with reasonable accommodations, you may have a right to be placed on a temporary leave of absence until such time as it is safe to return to work.
If you have any questions about your rights and obligations, consult with an employment lawyer.