As the COVID-19 pandemic continues, an unprecedented number of Canadian employees are not present at their physical workplaces. Some are working from home and many others have been placed on a temporary layoff. As social distancing measures relax, many employers are recalling their employees to their physical workplaces in an effort to return to normal operations.
Some Employees Are Not Willing To Return To The Workplace
Despite being asked to return to work, not all employees are embracing the recall, and some are unequivocally refusing to return until the pandemic is over. In some instances, the refusal is driven by a specific rationale that enjoys the protection of the law, such as the need to care for children who do not have daycare, but in other cases, the refusal to return to the workplace arises from a more general fear of COVID-19. Employers who encounter a general refusal are often unsure about the degree to which they can require employees to attend the workplace. As with most legal questions, the answer depends largely on the context.
There is a basic principle of employment law that employers dictate how work is to be performed by employees. This is true even if an employee believes that she or he has identified a method that is more efficient or preferable, such as working from home. Generally speaking, employees who refuse to follow their employer’s direction can be subject to discipline for insubordination. However, there is an exception to this rule where an employee refuses to follow a direction because the work is believed to be unsafe.
Refusing Work Perceived To Be Unsafe
A work refusal arising from concern about safety is protected under the Occupational Health and Safety Act (OHSA) and it triggers a series of events that lead to a determination about the safety of the task. In a simplified form, the steps are as follows:
- The employer asks the worker to perform a certain function
- The worker refuses, claiming it is unsafe
- The employer investigates the worker’s claim and makes a safety determination
- The worker accepts the result or continues to oppose the employer’s direction
- If the worker continues to refuse, a Ministry of Labour Inspector needs to be notified
- The Inspector will investigate and make a ruling in writing
Every work refusal is assessed on an individual basis and it is possible that a general fear of COVID-19 will result in a determination that the workplace is unsafe. However, such a finding could be coincidental rather than a validation of the employee’s fear or an indicator of a larger trend. For example, the employee’s general work refusal could lead to a determination that the workplace has poor social distancing practices or inadequate PPE.
Refusing To Return To Work Could Lead To Discipline
As of the date of this article, investigators from the Ministry of Labour do not appear to be concluding that the general danger posed by COVID-19 is sufficient, on its own, to justify a refusal to attend the workplace. Therefore, employers who follow the methods recommended by public health authorities should be in a position to insist that their employees return to the physical workplace. By extension, it would be justifiable to discipline an employee who refuses to attend the workplace after the work refusal is determined to be groundless.
Job-Protected Leaves of Absence
Many employers are hesitant to discipline employees who refuse to attend work even when the refusal is unsupported by law, and some are permitting said employees to take an unpaid leave of absence. While this may be practical, there is no general right to take an unpaid leave absence during the COVID-19 crisis.
The Provincial Government has created a list of circumstances in which an employee is entitled to job-protected leave (e.g. where a parent needs to provide childcare), but the job-protected leave does not extend to general fear of the virus. Eligibility criteria for job-protected leave can be found here.
If an employee does not qualify for job-protected leave, an employer is not obligated to offer a leave of absence as alternative to returning to work.
In short, employers will need to respond to work refusals on a case-by-case basis, but with an awareness that employees do not have an automatic right to avoid the physical workplace or take a leave of absence due to an unspecific fear of COVID-19.
For legal advice about your specific rights as an employee or employer, please contact one of SV Law’s Employment Law specialists here.
NOTE: This article considers the issue within the context of a non-unionized workplace subject to provincial (Ontario) regulation. The opinions expressed herein are general and should not be relied on as a substitute for specific legal advice.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.