Can an employee refuse to work because they are afraid of contracting COVID-19 in the workplace?

Employees have the right to work in a healthy and safe workplace and, as such, employers have the obligation to take all reasonable precautions to protect the health and safety of employees.  If an employee has reason to believe that there is a dangerous condition in the workplace or that their duties are likely to present a danger to their health and safety or the health and safety of their co-workers, the employee has the right to refuse work.

Employees who consider their work unsafe due to a confirmed (or presumptive) case of COVID-19 in the workplace, or who have concerns about the risk of potential exposure to COVID-19 from customers or clients, may be able to refuse to attend work or perform certain duties.  Whether or not the work refusal is deemed reasonable will depend on individual circumstances of the employee and the workplace.  Employees must report the refusal to their supervisor or employer who then have the obligation to investigate and, if necessary, adopt measures to eliminate or reduce the risk of potential exposure.   During this first stage of a work refusal, an employee is entitled to be paid at the appropriate rate.  If the issue is not resolved, and the worker still has reasonable grounds to believe the work is unsafe, the worker or the employer must call the Ministry of Labour.  During this second stage, an investigator will be assigned by the Ministry to investigate the work refusal and render a decision in writing.

An employer may not dismiss, discipline, suspend, or impose any penalty or threaten to take any of these actions on a worker who has exercised the right to refuse dangerous or unsafe work.  An employee who believes the employer has reprised against him or her may file a complaint with the Ontario Labour Relations Board (or the relevant federal/provincial Board) or, if working in a unionized workplace, may ask the union to file a grievance under the collective agreement. Make sure that you are aware of the timelines to make these complaints.

The right to refuse work is limited if the danger or working condition is inherent in the work performed by the worker or if the refusal of work would directly endanger the life, health, or safety of another person.  The right to refuse work is therefore limited for police officers, firefighters, workers employed in the operation of a correctional institution, health care workers and persons employed in workplaces like hospitals, nursing homes, sanatoriums, homes for the aged, psychiatric institutions, mental health centres or rehabilitation facilities, residential group homes for persons with behavioral or emotional problems or a physical, mental or developmental disability, ambulance services, first aid clinics, licensed laboratories—or in any laundry, food service, power plant or technical service used by one of the above). Employees in these occupations may still raise issues relating to unsafe working conditions with their supervisors or employers in order to have their concerns addressed and reduce the risk of exposure to COVID-19, though they may not be able to refuse to work.

If you can, you should speak to an employment lawyer to understand your rights as they will be very fact-specific to your circumstances.

It is important to keep up to date with federal, provincial, and municipal government instructions on how to act during this COVID-19 state of emergency. Federal and provincial governments are issuing updates daily – sometimes several times a day.

[Note: this information applies to non-unionized employees only. Unionized employees should consult their bargaining agent. This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]

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