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Since the onset of the COVID-19 pandemic, there has been a great deal of uncertainty and concern regarding the matter of safety in the workplace. In mid-March, Ontario declared a State of Emergency and all non-essential businesses within the province were ordered to close on March 24, 2020. While some workers employed by businesses that were deemed to be essential were lucky enough to be able to perform their work duties from home, many employees of such businesses were required to be physically present in the workplace. This raised fears among many of these workers that they were in danger of contracting COVID-19 on the job. In the time since, as the economy has begun to open back up and many more employees are being required to return to work, the number of Ontarian workers who share this fear has grown considerably.
Under the Occupational Health and Safety Act, employers are required to provide a safe working environment for their employees. Employees have a corresponding right to refuse work that is unsafe. If an employee refuses to complete a task on the basis that it is unsafe, this is called a “work refusal.” Once a work refusal has been made, the Ministry of Labour is notified and then assigns its inspectors to conduct an investigation into the safety of the workplace where the refusal was made. An employee who has made a work refusal is not required to carry out the work that was complained of until the Ministry of Labour’s inspectors have completed their investigation of the workplace.
The standard that the Ministry of Labour uses to determine whether a workplace is unsafe is a fairly high one. This has been especially so, in the case of workplace investigations involving COVID-19. Concerns that an employee may have that their employer is not maintaining a hygienic workplace or is not enforcing social distancing guidelines in the workplace are not considered evidence that a hazard exists in the workplace, such that the Ministry of Labour will consider a workplace unsafe and a work refusal will be upheld. In order for such a finding to be made and a work refusal to be upheld, an actual endangerment must be present at the time the work refusal is made, rather than a theoretical circumstance or fear of something that might occur at another time. A telling illustration of how high the standard is that must be met for a finding of an unsafe workplace to be made can be seen by the fact that, between January and June of 2020, over 300 workplace investigations were conducted but only one single workplace refusal was upheld by the Ministry of Labour’s inspectors.
Even where the Ministry of Labour has conducted an investigation and deemed a workplace to be safe, many employers are still dealing with the issue of employees who do not want to come into work, due to their fears of contracting COVID-19. If the nature of the employees work is not of the type that can easily be done from home, the employer is not required to allow the employee to do so.
An employer in a case like this, should make it clear to the employee, in writing, that it is an essential term of their employment that they be physically present in the workplace and, as the workplace has been deemed safe by the Ministry of Labour, they are expected to report to the workplace, in person, on a specific date. If the employee does not report for work on that date, the employer can consider the employee as having resigned from their employment and the employer will not be under any obligation to provide the employee with any severance or notice entitlements that are required to be provided to employees who are terminated without cause.
There are, however, always exceptions to the rules and if an employee or an employer find themselves in a position where they are unclear as to what their rights are, the best practice would always be to consult with a lawyer.