In the midst of the COVID-19 pandemic, where everyone is encouraged to stay home and keep a distance to stay safe, it’s not surprising that more Canadian employees are exercising their right to refuse work. Employees fear contracting the virus and spreading it to their family members, particularly if they believe proper health and safety protocols aren’t put into place at work.

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While this growing trend is understandable, it does put employers in a difficult position. If one of your employees has refused work and you’re not sure what to do, it helps to understand the extent and limitations of employees’ right to refuse and what you should do in this context. If you operate in Ontario, Alberta, British Columbia, or Quebec, here’s what you need to know.

Your Employees’ Right to Refuse Work

When can employees refuse to work? Employment laws allow them to refuse work when they feel their health or safety (or the health and safety of others) could be compromised by either going to work or performing certain tasks while at work. The specific language varies from province to province, but the idea remains the same under the various provincial legislations. 

Generally, the employee must have reasonable grounds or cause to believe that going to work or performing the tasks they’ve refused would expose them or others to danger or undue hazard. 

Both the notions of “reasonable grounds” and “danger” are assessed on a case-by-case basis based on a procedure provided by the law to evaluate the legitimacy of the employee’s concerns and the claim. 

Employees cannot refuse work if doing so would endanger others (such as in the case of essential services). They also cannot refuse work when the hazard associated with the work is a normal condition of employment. 

What Should You Do If an Employee Has Refused Work?

Once an employee has exercised their right to refuse work at your workplace, all parties involved must adhere to specific procedures. These procedures vary slightly in each province but are fundamentally similar. 

First, the employee has a duty to inform their immediate supervisor or employer that they are refusing work because they believe their health or safety (or that of others) is at risk. They must explain their reasoning. The supervisor or employer must then investigate the employee’s concerns and determine whether the right to refuse is justified. Typically, the employee and a member of the joint health and safety committee are present at this investigation. 

If the supervisor or employer does not agree with the employee’s apprehensions, a governmental health and safety officer will intervene and conduct a separate investigation to determine whether or not dangers or undue hazard truly exist. 

Note: this health and safety officer has the power to impose temporary danger abatement or shut down operations if they believe a danger exists. However, the health and safety officer’s decision can be appealed by either party to a tribunal.

While you wait for the health and safety officer’s ruling, you may assign the employee to a different role or assignment but you cannot reduce their pay. Until the matter is resolved, the employee should continue to receive their regular salary. 

Your Duty as an Employer

As an employer, you have an obligation to provide a healthy and safe work environment for employees. All employers should implement public health measures and provide employees with appropriate personal protective equipment (PPE). If these measures are not implemented, it is likely that the health and safety officer will agree with the employee who is refusing work due to a heightened risk of contracting COVID-19. Reach out to an HR outsourcing company to learn more about Canadian compliance.