As businesses begin to open up over the next few weeks, they will be calling on their employees to return to work. Many employees, concerned about the 13,000 active cases, may be reluctant to leave the safety of their homes to work in customer facing jobs.
Right to Refuse to Work
Employees in Ontario have the right to refuse to work when they have “reason to believe” that their health could be compromised by going to work on performing a task in the course of their work.
When is this right exercised?
First, the employee exercising the right must immediately notify the employer and explain their reasons for the refusal.
Next, the employer must investigate the refusal immediately and cannot compel the employee to carry out the work activities until it is proven that a danger does not exist. If the employer determines that a danger exists, they should implement proper safety controls to mitigate risks, provide personal protective equipment, and take any other steps that would address the work refusals.
If there is a disagreement over whether a danger exist, the matter can be escalated to a government health and safety officer who will conduct their investigation. In Ontario, while waiting on the decision, the employer can assign the employee who has exercised their right to refuse to work another job or assignment that they are able to perform, without a reduction in pay. Following the completion of this investigation, the government health and safety officer will then report their findings to the parties and can exercise their powers to, among other things, shut down operations of the business if they determine there is a danger present in the workplace.
Implementing Public Health Recommendations
To prevent employees from feeling unsafe at work and refusing to work, employers should implement the control measures suggested by Public Health. In addition, the effective implementation of these measures will prevent a government health and safety officer from agreeing with an employee who is refusing to work. Some measures that should be implemented include increased cleaning, allowing employees who can work from home to do so, communicating about positive cases and follow-up with specialized cleaning.
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.