As the province is now in Phase 2 of reopening the economy, many Employers reopening their business are starting to recall employees to work. Business is obviously not as usual and upon recall, some employees might fear for their safety for various reasons which could result in refusal to come back to work.
Under the Occupational Health and Safety Act (“OHSA”), Employers have a general obligation to reasonably protect the health and safety of their employees while in the workplace. As such, employees can refuse to work if they reasonably believe the physical condition of the workplace is likely to endanger them.
Here are a few tips for Employers who are recalling employees to work and may be dealing with work refusals:
For Employers who proceeded to layoffs and are now recalling employees to work or who are transitioning employees back to the office after having worked from the comfort of their home the past few months, clear communication to their staff is essential, and should include a detailed list of all health and safety measures that have been put in place to ensure conformity with the government and health officials recommendations and guidelines. Being forthcoming about these measures may alleviate some of the employees’ concerns and save you from potential work refusal situations.
When faced with employees refusing to come into work upon recall, Employers should not hesitate to ask questions to best ascertain the employees’ concerns. Many of these work refusals may occur prior to the employee even stepping foot into the workplace. Some employees may be entitled to the Infectious Disease Emergency Leave under the Employment Standards Act, for example if an employee is providing care or support to a child, parent, grand-parent or other loved one because of a matter related to COVID-19. Others may be more preoccupied by the risks involved in getting into work such as using public transportation and the Employer may be able to work with the employee to find other suitable alternatives or simply alleviate certain concerns. In summary, what can initially present itself as a work refusal, can easily be avoided when appropriate questions are asked.
Once employees physically return to the workplace and subsequently refuse to work because they reasonably believe that the condition of the workplace may endanger them, the Employer must then follow the investigatory and reporting process outlined in the OHSA. The Employer must internally investigate the situation, usually in the presence of the refusing employee and the health and safety or employee representative. If the work refusal is not resolved, the Employer must notify an Occupational Health and Safety Inspector at the Ministry of Labour and it is highly recommended that the Employer seek legal counsel.
If you as an Employer are facing potential or actual work refusals and need guidance about how to navigate these sometimes murky waters, we at Sicotte Guilbault can help you. Our team is diligently working to service all your legal needs and address any legal concerns you may have during these unprecedented times.