Issues surrounding a worker's right to refuse unusually dangerous work under workplace safety legislation are likely to arise in the context of the COVID-19 pandemic.
It is important to note that legislation in all four western provinces sets out a process for dealing with such work refusals and the circumstances under which an employer can assign another worker to the task at hand.
1. What is the process for dealing with a Work Refusal in Saskatchewan?
In Saskatchewan, Section 3-31 of The Saskatchewan Employment Act gives workers the right to refuse dangerous work where a worker has reasonable grounds to believe that an act or a series of acts is unusually dangerous to the worker's health or safety, or the health or safety of any other person at the place of employment. If an employee refuses to come to work due to fear of contracting COVID-19, their employer should respond by carrying out an investigation and if applicable, take action to eliminate the danger in accordance with the applicable occupational health and safety legislation.
If the employer does not take steps to satisfy the worker that the work is safe, the workplace occupational health committee must investigate the matter. If the worker is not satisfied with the occupational health committee's decision, the worker or the employer may request an occupational health officer to investigate the matter. The worker may continue to refuse the work until the occupational health officer investigates and decides the work is not unusually dangerous to the health or safety of the worker or any other person in the workplace.
2. What is the process for dealing with a Work Refusal in Manitoba?
Under section 43 of The Workplace Safety and Health Act (Manitoba), an employee in Manitoba has the right to refuse to work or do particular work at a workplace if he or she believes on reasonable grounds that the work constitutes a danger to his or her safety or health, or to the safety or health of another worker or another person. "Danger" is not defined in the legislation.
The worker is required to promptly report the refusal to perform dangerous work and the reasons for it to the employer. If the employer does not remedy the dangerous condition immediately, the person who receives the report of refusal to work, or a person designated by that person, shall immediately inspect the dangerous condition in the presence of the worker and workplace safety and health committee member or representative, or if neither exists, another worker selected by the refusing worker.
If the dangerous work is unable to be remedied, a safety and health officer may be notified, and the officer shall investigate the matter and give a decision in writing.
3. What is the process for dealing with a Work Refusal in Alberta?
Under the Occupational Health and Safety Act (Alberta), workers have a right to refuse to work or to do particular work at a work site if the worker believes on reasonable grounds that there is a dangerous condition at the work site or that the work constitutes a danger to health and safety (either his or her own or another worker or person).
If the worker refuses to work, the worker must promptly report the refusal to the employer. The employer is required to remedy the dangerous condition immediately or to investigate the dangerous condition and take any action necessary. If a work site health and safety committee or representative exists, they must be involved in the investigation, if neither exists, another worker selected by the refusing worker must be involved in the investigation.
Upon completing the investigation, the employer must prepare a written report outlining the complaint, the investigation findings, and what actions the employer took. The report must be provided to the worker and the work site health and safety committee or representative. If the worker believes that the dangerous condition has not been remedied, they may then file a complaint with an occupational health and safety officer, who will further investigate the complaint.
4. What is the process for dealing with a Work Refusal in British Columbia?
In British Columbia, under section 3.12 (1) of the Occupational Health and Safety Regulations, workers have the right to refuse to perform work if they have "reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person."
A "hazard" is "a thing or condition that may expose a person to a risk of injury or occupational disease." It is possible that exposure or the risk of exposure to COVID-19 may satisfy the definition of "injury" or "occupational disease", in certain circumstances.
A worker refusing to "carry out a work process or operate a tool, appliance or equipment" under section 3.12 (1) must immediately report the circumstances of the unsafe condition to the employer. The employer must immediately investigate the matter and either ensure that any unsafe condition is remedied without delay; or if in his or her opinion the report is not valid, must inform the worker who made the report.
If the worker continues to refuse to carry out the work, then the employer must investigate the matter in the presence of the refusing worker and: a worker member of the joint committee; a worker who is selected by a trade union; or if neither of those options exist, any other reasonably available worker selected by the refusing worker.
If the worker continues to refuse to carry out the work, the employer and the worker must immediately notify an occupational health and safety officer, who must investigate further.
5. Can an employer assign the work to another worker?
Yes, however, employers have certain obligations with respect to assigning the work to another worker. In general, an employer cannot assign work that a worker has refused to another worker unless the employer has advised the newly-assigned worker of:
- the refusal and the reasons for the refusal;
- the reason(s) the worker may, in the employer's opinion, carry out the work in a healthy and safe manner; and
- the worker's right to refuse to perform the work.
The right to refuse work and the procedure regarding work refusals and occupational health and safety investigations is relatively similar in all four western provinces. Employers should consult their jurisdiction's legislation and regulations when dealing with a work refusal in the context of COVID-19.
6. Is there any precedent for this type of situation?
Cases determined in relation to refusals to work on the basis of severe acute respiratory syndrome ("SARS") may provide some guidance in regards to work refusals related to COVID-19.
In Cole v. Trans-Canada Air Lines, 1966 CanLII 253 (ON SC) Air Canada ticket agents employed at Pearson International Airport in Toronto refused to work for fear of contracting SARS from passengers with whom they came in contact at the airport. At the time of their refusals to work, the employees were responsible for providing passengers with information and direction while boarding or connecting to flights, and for checking passenger documents such as tickets, boarding passes and passports.
A health and safety officer investigated the refusals to work and determined that a danger did not exist for the employees, a decision affirmed by the Canada Labour Relations Board. The officer's decision was based on the following:
- Health Canada health professionals were at Pearson International Airport to provide information or assist ill passengers;
- there was on-board screening of ill passengers by flight crews during flights; and
- telephone conference calls were held daily to brief various government departments on SARS.
In Caverly v. Canada (Minister of Human Resources Development), 2002 FCA 92 two Investigation and Control officers who worked at a human resources centre expressed concern about meeting with clients from Asian countries amid the SARS outbreak. Clients came to the officers' workplace directly from an international airport to apply for social insurance numbers. The officers refused to meet with clients unless they were provided with equipment to protect against SARS. The employer agreed to allow officers to wear masks and gloves, but would not supply them to the officers.
Both employees refused to work citing their right to refuse dangerous work under section 128(1) of the Canada Labour Code. A health and safety officer was appointed to investigate the work refusal. The officer issued a decision finding that the employees were in no danger, based on a statement from Health Canada stating that Government of Canada workers are not considered to be at high risk of infection because of the limited contact with and proximity to the individuals. This finding was upheld on appeal.
Finally, in Chapman and Canada (Customs and Revenue Agency), a Canada Customs and Revenue Agency ("CCRA") officer employed at Pearson International Airport refused to work during the SARS outbreak. He complained that the CCRA had not provided him with personal protective equipment and information to protect his health and safety from unknown pathogens that may be present in the workplace.
The health and safety officer who investigated the refusal to work determined that there was no danger to the employee because his work did not involve close contact with passengers. At the time, there was only one direct flight daily from southeast Asia, and Health Canada was putting measures in place to quarantine ill passengers that would divert them before they reached Customs. He noted that no airline crew member, ground crew member, or other airport employee had contracted SARS. The officer's decision was upheld on appeal.
When viewed in the context of COVID-19, the decisions regarding SARS-related work refusals suggest that if an employer has taken steps to abide by the terms of Public Health Orders, limited contact and proximity to others in the workplace (in particular, potential carriers of the virus), and implemented appropriate policies and safe work practices under health and safety legislation so as to mitigate the risk of contracting the disease, there may not be a danger to the employee that triggers the right to refuse unsafe work. However, any refusal to work on grounds related to COVID-19 must be considered on a case-by-case basis. Context will be very important.
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.