We answer some commonly asked questions about refusing to work and employer responsibilities
On May 19, 2020, the Ontario government commenced phase one of reopening the economy after a countrywide shutdown related to COVID-19. We are now almost three weeks into phase one with phase two in the (hopefully) not-so-distant future. Naturally, many Canadian workers have questions and concerns regarding employment laws and the return to work after COVID-19. Can your employer force you to be tested for COVID-19? What if you don’t want to go back to work? What are my employer’s responsibilities? This is an employment lawyer’s take on returning to work by answering some frequently asked questions.
Protocol for reopening
Upon entering each stage, each province will release a detailed outline of which businesses may reopen and under which guidelines they may do so. The protocol may vary by industry, so it is essential to search for information that pertains to your specific industry. In addition to those guidelines, there are mandatory local, provincial, and federal regulations that employers and employees must follow to prevent and eliminate the risk of COVID-19 in the workplace. As an employee, you must stay up-to-date on legislation, recommendations, and advice from public health authorities and health experts. Any employment lawyer would advise you to be well-informed on your rights and responsibilities as an employee in concerns to COVID-19.
FAQ: An employment lawyer answers
Q: Am I legally obligated to disclose a COVID-19 diagnosis to my employer?
A: You are not legally obligated to tell your employer that you were diagnosed and cleared of COVID-19. However, your employer does have the right to ask you if you are sick with COVID-19. Doing so falls under their duty to ensure and maintain a safe work environment. You must inform your employer if you have recently been exposed to the virus or experiencing symptoms. By neglecting to do so, you are knowingly putting coworkers and the general public at risk, which could result in you being personally liable for endangering others’ health.
Q: Can I refuse to return to work?
A: Generally speaking, no. If your employer calls you back to work, you are obligated to comply, unless you feel as though there is a reasonable risk to yourself or others.
Click here to read more about what our employment lawyer says about refusing to work due to COVID-19.
Q: Can my employer force me to be tested for COVID-19?
A: Your employer can not force you to be tested. As stated in the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, you are not obligated to provide them with a doctor’s note. As such, if your employer has reasonable cause to believe that you may be unfit to work, they may ask for additional medical documentation. Any request for information should be limited to what is necessary. They can not deny your return to work if based on impressionistic or discriminatory information.
According to the Ontario Human Rights Commission (OHRC), as of March 18, 2020, their policy position states that employers may implement medical assessments (e.g., temperature checks) to determine or verify the fitness of their employees. These medical assessments must be performed under the Human Rights Code. Employers should also be informed about possible adverse impacts the testing may have on employees with disabilities. They must make the necessary accommodations, and do so while excluding information that may identify a disability.
Your employer’s responsibilities
As mentioned, there are sector-specific, local, provincial, and federal regulations and guidelines that each employer must follow when reopening amidst the pandemic. Every employer has a legal obligation to take all necessary and reasonable precautions to protect their employees’ health and safety, as per Ontario’s Occupational Health and Safety Act. By failing to do so, they may be subject to charges and prosecution.
If your employer receives notification that an active employee has tested positive for COVID-19, they must let you know. They can not do so in a way that could identify the person unless reasonably necessary. Followed with information regarding necessary precautions that they are taking to stop the spread, and provide specific details to those who have been in close contact with the infected individual.
If you feel as though your health and safety are at risk or compromised due to your employers’ failure to:
- Fulfill their legal duties,
- Follow health and safety regulations and guidelines,
- Any other workplace violation
An employment lawyers’ recommendation would be to contact your local public health and safety representatives for more information regarding your rights and employment laws in your jurisdiction. Secondly, submit a formal, written work refusal to your employer as soon as possible. Lastly, seek the help of an employment lawyer if necessary.