The Workers' Compensation Board of British Columbia (the "Board") recently considered the issue of whether the right to refuse unsafe work protected an employee who refused to show up for work entirely due to the COVID-19 outbreak.
On March 16, 2020, just a few days before a state of emergency was declared in British Columbia, a bartender (the "Worker") left a message for his manager to advise that he did not feel comfortable coming into work due to the COVID-19 outbreak. He asked to have that day off and did not offer to make arrangements to have his shift covered by someone else. He later told his manager that he understood he could not be penalized for refusing to come into work due to health and safety concerns.
The Worker was subsequently dismissed by his employer, which stated that his dismissal was for reasons related to his work performance and his behaviour at work. The Worker brought a discriminatory action complaint (the "Complaint"), alleging that the employer had discriminated against him because he refused unsafe work.
Notably, revisions of the Worker's Compensation Act1 (the "Act") came into force in April - after the Worker filed his complaint on March 20, 2020, and before the Board's decision was issued. The Board remarked that the revisions to the Act were not intended to change the law, but that they did change the language from "discriminatory" action to "prohibited" action under sections 47 and 48 of the revised Act (formerly sections 150 and 151).
The Board commented that in order to succeed on a prohibited action complaint, a worker must establish a prima facie case. This requires the worker to provide evidence which would, if believed, be capable of proving all of the following three elements:
- The employer took action constituting "prohibited action" pursuant to s. 47 of the Act (actions that fall under this section include, for example, coercing, demoting, suspending, or dismissing a worker);
- The worker behaved in a way that was covered by s. 48 of the Act; and
- The employer's actions under s. 47 were causally connected to the worker's conduct under s. 48 of the Act.
The Board dismissed the Worker's complaint, finding it did not meet this test. Although dismissal was one of the "prohibited actions" contemplated by s. 47 of the Act, the Board found the employee had not acted in a way that attracted the protection of s. 48. In other words, the first requirement of the test was met, but the second was not.
Section 48 of the Act provides that an employee will be protected from prohibited action where they are exercising rights or carrying out duties in accordance with the Occupational Health and Safety provisions, regulations, or an applicable order. Section 3.12 of the Occupational Health and Safety Regulations2 (the "Regulations"), in turn, provides a formal procedure for refusing unsafe work. This section requires a worker to immediately report the unsafe circumstances to their employer, who must immediately investigate. If the matter is not resolved by this step, it requires the employer to involve both the worker and another designated person in their investigation. The final step, if the first steps fail, involves contacting a WorkSafeBC prevention officer, who will make a determination. Where the procedure outlined in s. 3.12 of the Regulations is followed, s. 3.13 protects workers from prohibited action by the employer.
The Board found that the Worker's behaviour did not engage the protections of the Regulations because he did not follow the prescribed protocol, and instead, had merely "refused to show up for work".3 Citing to a decision of the Ontario Labour Relations Board, the Board explained that merely "saying the words 'health and safety' or '[quoting a section number]' or otherwise invoking the Act does not operate as some sort of charm or incantation which... protect[s] anyone who utters it".4 The Board explained that the purpose of s. 3.12 is to "ensure consultation between the parties in order to mutually resolve a potentially unsafe working condition".5 The Board found the worker was required to do more than just refuse to show up for work - rather, he was required to raise the concerns with his manager and remain at the workplace to participate in the unsafe work refusal procedure. The Board also commented that there were a number of short term protective measures available to the Worker - such as regular hand washing, wearing gloves, physical distancing and wearing a mask or scarf to protect others.
The Board also found the Worker had not complied with s. 3.10 of the Regulations, which requires a worker to report as soon as possible what they observe to be an unsafe or harmful condition. They found the Worker had "merely voiced a generalized concern and his feeling of uncomfortableness"6, which was less than what s. 3.10 required. The Worker's claim was dismissed.
Simply refusing to show up to work does not constitute a valid exercise of the right to refuse unsafe work. A worker who wishes to refuse unsafe work must report the circumstances in accordance with s. 3.10 and follow the procedures dictated by s. 3.12 of the Regulations to work towards mutual resolution of the potentially unsafe conditions. Without following these steps, the worker is unlikely to attract the protection of this statutory scheme.
We note, however, that employees may be entitled to other legal protections with respect to difficulty or inability to perform their job duties in the usual manner due to COVID-19-related circumstances, such as their particular medical or personal circumstances.
1 RSBC 2019, c 1.
2 BC Reg 82/2020.
3 At para 18.
4 At para 17.
5 At para 19.
6 At para 23.
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