Two recent WorkSafeBC cases provide guidance regarding unacceptable worker actions in the context of the COVID-19 pandemic and related health and safety issues. Both cases dealt with prohibited action complaints brought by a dismissed worker against a former employer under sections 47 to 50 of the B.C. Workers Compensation Act.
Under section 48 of the Act, an employer must not take prohibited action (previously known as discriminatory action) against a worker in retaliation for the worker engaging in one or more of the health and safety activities set out in the Act or the Occupational Health and Safety (OHS) Regulation.
Section 47 of the Act defines “prohibited action” to include any act or omission by an employer which adversely affects a worker with respect to any term or condition of employment. Examples of prohibited action include coercion or intimidation, suspension, demotion, a change in working hours, or dismissal.
To establish a basic case of prohibited action, a worker must establish that there is a causal connection between the employer's prohibited action and the worker's conduct in one or more of the health and safety activities set out in the Act or OHS Regulation.
If the worker establishes a basic case of prohibited action, the employer must then prove under section 49 of the Act, and on a balance of probabilities, that it did not engage in prohibited action to successfully defend against the complaint.
The complainant, a bartender, alleged that his employer took prohibited action by dismissing him on March 18, 2020 after he refused work alleged to be unsafe at the outset of the COVID-19 pandemic. He filed a complaint with WorkSafeBC a couple of days later.
On March 11, 2020, the World Health Organization declared COVID-19 to be a global pandemic. On the morning of March 16, 2020, the bartender contacted his manager to say that he did not feel comfortable coming to work and asked to be removed from the March 16th shift. The worker believed that he was protected under the circumstances by the “right to refuse unsafe work” provisions under the OHS Regulation.
By decision dated June 30, 2020, a WorkSafeBC Investigations Legal Officer dismissed the complaint and found that the worker's actions did not engage the protections against unsafe work in the OHS Regulation as he failed to follow the required procedure.
Importantly, the WorkSafeBC Officer noted that “the right to refuse unsafe work does not give a worker the right to not show up for work”, and added that the worker could have shown up to work and followed the required procedure set out in the OHS Regulation or could have engaged in various protective measures such as regular handwashing, the wearing of gloves, physical distancing, or the wearing of a mask. The WorkSafeBC Officer found that the voicing of generalized concern and feelings of uncomfortableness regarding COVID-19 did not amount to the reporting of unsafe workplace conditions.
The complainant, an order picker at a fresh produce warehouse, filed a complaint on April 29, 2020 alleging that his employer took prohibited action by dismissing him in retaliation for raising health and safety issues. He had complained that the employer was not enforcing proper COVID-19 safety protocols and was critical of the employer's handling of the COVID-19 crisis and health and safety in general.
By decision dated October 20, 2020, a WorkSafeBC Investigations Legal Officer found that the worker had made out a basic case of prohibited action, and had established he had raised concerns with the employer and WorkSafeBC about the lack of physical distancing, insufficient bathroom facilities and common areas not being disinfected or cleaned. While the employer had addressed those concerns, the WorkSafeBC Officer was prepared to find that the worker's dismissal could be causally connected to the reporting of unsafe conditions to the employer and WorkSafeBC.
However, the WorkSafeBC Officer dismissed the complaint and, in doing so, accepted the employer's explanation that it had implemented a mandatory face mask policy and the worker had been dismissed two days after the introduction of the policy for repeated refusal to properly wear a mask and for his aggressive, confrontational and disrespectful response to employer requests that he wear a mask.
Significance for Employers
These two cases highlight how important it is for employers to respond to specific employee concerns regarding unsafe workplace conditions related to COVID-19 and also not to take any retaliatory action against a worker for raising such concerns. The latter case also establishes that employers are entitled to implement specific COVID-19 safety policies such as requiring workers to properly wear face masks in the workplace.
Originally Published by LexisNexis Labour Notes Newsletter
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.