Refusal to Work

With the ongoing surge in COVID 19 cases employers need to be aware of their obligations. The recent Public Health Order which is in place from November 7 to 23, has imposed specific obligations on employers.  Specifically, the order requires that:

1. Employers must review their COVID-19 Safety Plans to ensure that they adequately protect workers from the transmission of COVID-19 in the workplace and are consistent with WorkSafeBC requirements.

2. An employer of a worker who is working in a workplace other than the worker’s private residence must ensure that the worker has done a daily health check for the symptoms of COVID-19.

3. If an employer is not satisfied that a worker has done a daily health check the employer must not permit the worker to work at the workplace.

4. Employers should encourage workers to work from their private residence if feasible, unless there is a preference on the part of the employer or the worker for the worker to work at the workplace.

5. Employers must ensure that their COVID-19 Safety Plan includes measures to prevent workers from crowding together or congregating in higher risk spaces, including elevators, lobbies, stairwells, corridors, bathrooms, breakrooms and kitchens.

The new requirements imposed on employers with this Public Health Order include, in addition to the requirement to conduct a review of their workplace Safety Plan, a requirement to institute a daily health check for COVID-19 symptoms and to encourage workers to work from home where possible.

But what can an employer do if they require workers to be present at the workplace and the worker refuses to do so due to a fear of exposure to COVID-19?  A decision of WorkSafe from June 2020 provides guidance and can be found here. The worker alleged that he had been terminated due to his refusal to work which would be prohibited under the Worker’s Compensation Amendment Act. The relevant provision of the Act is as follows:

48          An employer or union, or a person acting on behalf of an employer or union, must not take or threaten prohibited action against a worker

1. for exercising any right or carrying out any duty in accordance with OHS provisions, the regulations or an applicable order…

The definition of “prohibited action” includes dismissal.

WorkSafe ultimately dismissed the worker’s complaint. This was based on the failure of the worker to follow the procedures set out in the Act to trigger the prohibited actions protections. The facts in this case are not dissimilar to what I have heard from other clients. The worker contacted the employer and informed them that due to the COVID-19 outbreak they were not comfortable coming into work and asked for their shift to be covered. The worker ultimately suggested that if he refused to come into work due to health and safety concerns he could not be penalized.

For a worker to refuse unsafe work and trigger the prohibited actions protections they must follow the formal procedure for refusal of unsafe work. Simply saying the words health and safety or something similar does not operate as “some sort of charm or incantation which operates to protect anyone who utters it…”[i] The purpose of the Occupational Health and Safety (OHS) Regulation is to ensure consultation between the parties in order to mutually resolve a potentially unsafe working condition. The right to refuse unsafe work does not give a worker the right to not show up for work. Rather the procedure followed in s. 3.12 of the OSH Regulation must be followed. That procedure is as follows:

1. A person must not carry out or cause to be carried out any work process or operate or cause to be operated any tool, appliance or equipment if that person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person.

2. A worker who refuses to carry out a work process or operate a tool, appliance or equipment pursuant to subsection (1) must immediately report the circumstances of the unsafe condition to his or her supervisor or employer.

3. A supervisor or employer receiving a report made under subsection (2) must immediately investigate the matter and
   a. Ensure that any unsafe condition is remedied without delay, or
   b. If in his or her opinion the report is not valid, must so inform the
   person who made the report.

4. If the procedure under subsection (3) does not resolve the matter and the worker continues to refuse to carry out the work process or operate the tool, appliance or equipment, the supervisor or employer must investigate the matter in the presence of the worker who made the report and in the presence of
   a. a worker member of the joint committee,
   b. a worker who is selected by a trade union representing the
   worker, or
   c. if there is no joint committee or the worker is not represented by
   a trade union, any other reasonably available worker selected by
   the worker.

5. If the investigation under subsection (4) does not resolve the matter and the worker continues to refuse to carry out the work process or operate the tool, appliance or equipment, both the supervisor, or the employer, and the worker must immediately notify an officer, who must investigate the matter without undue delay and issue whatever orders are deemed necessary.

What is clear from the WorkSafe decision and from a review of the OHS Regulations is that a worker simply saying they do not feel safe is not sufficient. What the worker is required to do is report the perceived unsafe condition, following which the employer has an obligation to investigate and either take steps to remedy the unsafe condition or advise the worker why they do not view the condition as unsafe. If the worker is then not satisfied with the answer/response and returns to work, then the employer must investigate the complaint in the presence of the worker and another representative. If the worker continues to refuse to attend work, they must then report the matter to WorkSafe, who will conduct their own investigation.

For an employer, if a worker says that they will not come into work despite being requested to do so out of fears relating to COVID-19, the appropriate response is to find out what in particular is causing the employee this concern and carefully consider whether it is a valid concern or not. If it is, make amendments to the workplace so that it is safe. If it is not a valid concern, tell the worker why and ask them to return to work. If they still refuse to attend work, ask them to attend with one of the representatives noted to have the investigation conducted in their presence. If they continue to refuse to attend work, advise them of the requirement to report the safety concern to WorkSafe.

An employee cannot be terminated because of a report of safety concerns. An employee can be terminated for a refusal to attend work, and in particular, if they also have not followed the process required by the OHS Regulations. Remember however that if the employee is seeking COVID-19 related leave and they satisfy the requirements under the Employment Standards Act they must be provided with unpaid leave for the time period during which they satisfy the requirements. There is no entitlement to the leave due to fears of exposure to COVID-19 but there is entitlement to the leave if:

1. The employee has been diagnosed with COVID-19 and is acting in accordance with
   a. instructions or an order of a medical health officer, or
   b. advice of a medical practitioner, nurse practitioner or registered nurse;

2. The employee is in quarantine or self-isolation in accordance with
   a. an order of the provincial health officer,
   b. an order made under the Quarantine Act (Canada),
   c. guidelines of the British Columbia Centre for Disease Control, or
   d. guidelines of the Public Health Agency of Canada;

3. the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work;

4. the employee is providing care to an eligible person, including because of the closure of a school or daycare or similar facility;

5. the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;

6. a prescribed situation exists relating to the employee.

These are trying times for everyone and employers play a significant role in slowing the spread of COVID-19 by ensuring safe workplaces. As always, open communication with employees will assist with easing concerns about being in the workplace or understanding the protocols that are put in place to ensure that workplaces remain safe.

This update was authored by Rose Keith, QC. Looking for more information about COVID issues in the workplace? Contact Rose at rkeith@harpergrey.com or anyone else listed on the authors page.

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[i] General Motors of Canada Limited, [1997] O.L.R.B. Rep. March/April 223 at para. 20