The ongoing flare-up of the ebola
virus is currently front page news. Notwithstanding that as
of the time of this writing, Canada has yet to see its first
confirmed case of the disease, government and health leaders are
scrambling to determine what precautions should be taken to protect
In both Ontario and Québec,
some paramedics have refused to work until their employers take
active steps to protect them from possible ebola exposure.
Both groups demanded specialized personal protective equipment
(PPE) and training in order to negate the risk of infection.
In Ontario, the paramedics were
ordered to return to work.
In Québec, the ambulance
service was ordered to provide the measures and precautions
demanded by the workers.
What led to the different responses of the two regimes?
In Ontario, the employees faced two
major impediments to the refusal to work. For one, the
section of the Occupational Health and Safety Act which
permits employees to refuse dangerous work specifically excludes
persons "employed in the operation of an ambulance
service," as well as other first responders such as police and
firefighters, if the danger was inherent in the worker's
work. There is a strong argument to be made that,
notwithstanding the lethality of ebola, exposure to dangerous and
potentially fatal diseases, such as AIDS, is inherent in the work
of a paramedic. Of course, employers must still take
precautions in accordance with their general and specific statutory
In addition, the Ministry, in
ordering the paramedics back to work, stated that
"hypothetical" situations are not legitimate reasons to
refuse work. This is a logical position to take, as to
suggest otherwise would allow work refusals around any equipment or
situation that could be "hypothetically" dangerous, even
if such danger might only exist due to a gross malfunction or
extreme operator error. Clearly, the Ministry of Labour
viewed the danger posed to the workers by ebola as too speculative
to warrant the refusal to work.
Under the Québec regime, on
the other hand, there is no exclusion from the work refusal
provisions for first responders. That being said, the
criteria for determining whether a work refusal is reasonable are
It is possible that the Ontario
legislation, with its specific exclusion for first responders in
some instances, led to the distinct decision of the Ministry of
It may also simply be that the
Québec inspector responsible for the investigation of the
work refusal had a different opinion as to the danger that
paramedics face from ebola. Certainly, many news outlets are
beating the drum as to the dangers of the disease, notwithstanding
the assurance of many experts that the risk to the public has been
What Employers Should Know
The situation highlights the need
for employers to be aware of the potential that workplace dangers
can shift. A constant re-assessment of potential risks and
safety measures is critical to maintain compliance with
occupational health and safety laws. Likewise, in evaluating
a refusal to work, employers must be aware of contemporary
concerns. It seems likely that had this refusal taken place
six months ago, the Québec refusal would also have been
dismissed. However, it is clear that the landscape has
changed since then.
Employers should plan ahead and
respond to current events in their health and safety programs, so
as to avoid potential slowdowns from such emerging health and
safety concerns. In the wake of the SARS crisis many
employers prepared Emergency Response Plans and/or Business
Continuity Plans. Now may be a good time to dust them off and
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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