Employment law and refusing work due to COVID-19

Does employment law allow you to refuse work because of COVID-19?

Invoking your right to refuse unsafe work during a pandemic

Roughly 44% of Canadian households have lost work due to COVID-19. The remaining 56% largely consists of those working from home, and essential workers still required to be physically present at their jobs. The expectation that you report to work is no different than usual if your job is a critical service, or if working from home is not possible. Ensuring that you are informed about employment law and your rights as an employee is crucial. Employers are always responsible for protecting the health and safety of their employees in the workplace, and all employees have the right to refuse unsafe work under the Canada Labour Code. COVID-19 is considered a workplace hazard under the Code; however, the existence of the virus alone is not enough reason to refuse work.

Knowing employment law and grounds under which you can refuse to work

According to employment law in Canada, you can invoke the right to refuse unsafe work during COVID-19 if:

  • You are at risk of exposure to the virus because your employer failed to provide the necessary personal protective equipment (PPE) or training on how to use it.
  • You have not been trained appropriately on how to do your job safely, aside from the instructions given to you by your national and local health agencies.
  •  Your workplace does not allow you to follow physical distancing guidelines or other public health directives
  • You find yourself in any other situation where there is a justifiable hazard related to the pandemic. Justifiability is dependent on whether or not the employer has taken measures that have been deemed appropriate in preventing or eliminating the threat of danger/infection.

Your employer’s responsibility to provide you with PPE

Employers must provide the required PPE that is necessary for you to do your job safely. However, your employer is not responsible for supplying PPE if it not typically needed or if it is otherwise safe for you to work without it. In this instance, your employer can also ask you to remove PPE, such as masks, and can prevent you from using it in the workplace. The Public Health Agency of Canada states wearing a non-medical mask is an additional safety measure but they do not prove to be effective in protecting you from the virus. Because of this, they are not a mandatory form of PPE for all workplaces. Be that as it may, if you are someone who is over the age of 65 or immunocompromised, your employer is obligated to make PPE accommodations for you if necessary. Failure or refusal to do so gives you the right to refuse work as a vulnerable individual. Employers should be actively encouraging employees to communicate their health risks and vulnerabilities with their supervisors.

Your job is protected if you can not work

The government of Ontario enacted the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, to protect the jobs of those who are unable to work. This act ensures job security for individuals who are required to isolate or quarantine, or if they have to care for children/other relatives. If you are experiencing symptoms of COVID-19, have been in close contact with a confirmed case, or have travelled outside of the country, inform your employer immediately. They can not force you to work, and the legislation also states that they can not demand a doctor’s note.

Deciding to submit a refusal

If you are considering a work refusal, you should start by contacting your local health and safety representative. They can provide you with more guidance surrounding your case and the employment laws in your area. Employers can not terminate, discipline, or threaten someone who is exercising their right to refuse work. Nonetheless, if your employer believes that you are refusing work because of COVID-19 with no justification, they may accuse you of insubordination and enforce disciplinary actions. Employees should state their reasons for refusal clearly, concisely, and in writing as soon as possible. Providing your employer with this information will help to make the distinction between an unsafe work refusal and insubordination.

If you’d like more information on work refusals related to COVID-19 visit: https://cupe.ca/covid-19-and-right-refuse-unsafe-work

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