COVID-19 : Can I Be Forced To Work If I Feel Unsafe?
(This is not legal advice and is for informational purposes only.)
As the Province of Ontario slowly re-opens the economy, businesses will resume operations and workers will be asked to return to work. However, the COVID-19 virus is not going away, the virus is highly communicable, and there remains a risk of virus transmission at work. Risk mitigation measures may reduce the danger; however the risk of virus transmission will not be completely eliminated.
Many have expressed their fear of catching COVID-19 at work and want to know whether they can be required to work.
Right to a Safe Work Environment
Workers are entitled to expect that the workplace is safe on return to work. Under the Ontario Occupational Health and Safety Act (“OHSA”), provincially-regulated employers must keep their workers and workplaces safe from dangers and hazards. This means taking every precaution reasonable in the circumstances for worker health and safety.
Depending on the nature of the work, employers may be required to implement some or all of the following general precautions as appropriate to their workers and workplaces:
- Providing personal protective equipment (PPE), such as masks, sanitizer and gloves;
- Regularly cleaning and sanitizing the workplace;
- Requiring employees or contractors to stay at home if suffering from flu-like symptoms or after having been diagnosed as being COVID-19 positive;
- Conducting temperature checks;
- Requiring employees and visitors to maximize social distancing;
- Spacing between workstations and desks;
- Requiring employees or visitors to the premises to declare whether they have recently returned from international travel;
- Implementing rotating shifts and staggered shifts and breaks; and
- Implementing work-from-home protocol for those staff whose physical presence is not required.
Additionally, as part of Ontario’s plan to re-open businesses, on April 30, 2020, the four provincial health and safety associations[1] (HSAs) with whom the Ontario government works released a set of 60 sector-specific guidance documents to further assist employers and employees remain safe at work during COVID-19. These documents are health and safety guidelines which include best practices on hygiene, precautionary steps to take while working, and safety guidance across sectors. Access to these documents can be found HERE.
The Province has also hired 58 new inspectors at the Ministry of Labour who will assist in enforcing the new health and safety guidelines.
Right to Refuse Unsafe Work
Whether a COVID-19 hazard exists is likely to depend on the specific operations, the nature of the work, the level of interaction with the general public and with co-workers, and the protective measures being put in place by the employer.
If the workplace is safe, the employer can generally require workers to return to work.
If a worker has reason to believe that working conditions are unsafe, the worker may refuse to work. S/he should promptly report the safety concern to the employer. The employer must then investigate the matter, and where necessary, promptly take measures to resolve the health and safety issue.
Employers are prohibited from disciplining, firing, or otherwise penalizing an employee for in good faith refusing to work due to risk of harm or danger in the workplace.
Ministry of Labour to be Notified
If the issue is unresolved and the employee has reasonable grounds to believe that the workplace continues to be unsafe, the Ministry of Labour (“MOL”) must be notified and an MOL inspector will attend at the workplace premises to investigate. During this investigation, the employee can remain off work until the investigation concludes or may be assigned alternate work. Any staff covering for the worker must be notified of the work refusal and the refusing worker’s safety concerns.
If the MOL inspector concludes that working conditions are unlikely to endanger anyone, the worker is expected to return to work.
If on the other hand the inspector concludes that the working conditions are unsafe, the MOL inspector will generally order the employer to institute necessary measures to address the safety issue.
Essential Workers
Workers in certain high-risk jobs that are essential to public safety (e.g. firefighters, front line healthcare workers, police officers, prison employees) may have limited rights in refusing to work.
If his or her work refusal endangers someone else’s safety or the risk is a normal part of the job, the employee may not refuse work without penalty.
Reopening businesses
Employers and employees alike are encouraged to familiarize themselves with their health and safety rights and obligations, including recommended precautions to reduce the likelihood of COVID-19 transmission.
If you have any questions about your rights and obligations as an employer or employee, consult with an employment lawyer.
[1] Infrastructure Health & Safety Association, Public Service Health & Safety Association, Workplace Safety North, and Workplace Safety and Prevention Services.
The Waksdale decision marks a dramatic shift in the court’s approach to employment contracts. This is a positive result for employees seeking to set aside an unfavourable termination clause in an employment contract.
Generally, the courts have scrutinized termination clauses in employment contracts that severely limit the employee’s severance entitlements on termination. However, the Waksdale decision imposed a new high watermark for employers.
In Waksdale, the Court of Appeal held that termination clauses in an employment contract should be read together. If any part or section of the contract dealing with the individual’s termination entitlements violates the minimum statutory requirements in any manner, all of the termination provisions are rendered unenforceable. In other words, the provisions are linked together. A severability clause will not save termination provisions that are rendered void by statute.
In the result, the Court of Appeal held that because the termination ‘for cause’ provision failed to meet minimum standards, the termination ‘without cause’ provision was therefore also unenforceable. This was so, even though the termination ‘without cause’ clause by itself, complied with minimum statutory requirements.
What does this mean for employers?
In practical terms, existing employment contracts should be reviewed and updated as necessary to ensure compliance based on this new legal standard. In particular, the following are likely to be problematic from an enforceability perspective:
- Termination clauses that permit employers to terminate for just cause and without any notice or payment in lieu;
- Bonus plans or clauses that require active employment as a pre-condition to payment of a bonus;
- Vesting of equity, restricted share units (RSUs), performance share units (PSUs), deferred share units (DSUs) options only if actively employed on the vesting date;
- Any provision that provides less than the employee’s minimum statutory entitlements on termination.
For more information, contact JPak Employment Lawyers today.