COVID-19 A Worker's Right to Refuse Unsafe Work

Employees in all provinces and territories have the right to refuse work in unsafe conditions

Can employees refuse to come to work or perform their duties as organizations grapple with COVID-19? Across Canada, every employed person has the right to a safe work environment. But what does this mean?

Each province and territory of Canada has slightly different variations in their respective employment standards but each follow a general guideline, the “internal responsibility system”. This requires that everyone who is within or is associated with the workplace take responsibility for their own safety, and the safety of others in the workplace, which includes employers, employees, owners, contractors, sub-contractors, contracting employees and suppliers.

Under the Occupational Health & Safety Act (or equivalent), employees have three (3) essential rights:

  1. The right to know;
  2. The right to participate
  3. The right to refuse unsafe work.

The right to know means that employees have the right to know about health and safety concerns within their workplace, including what hazards are present in their jobs, and their work environment (i.e. WHMIS labels).

The right to participate means that employees have the right to participate and have input in decisions related to their safety and well-being at work (i.e. Joint Health & Safety Committee).

Presently, employers and employees are seeking clarity on the third right, which is the right to refuse unsafe work. While in general terms, this right allows an employee to refuse to perform work where they believe that their health is at risk, it is important to know that each jurisdiction in Canada may vary slightly in its interpretation of the work “risk” and conversely the obligations of an employer under Occupational Health and Safety laws.

In a recent article from McCarthy Tertault LLP, it outlined that “the right to refuse work is considered an exceptional mechanism and, as such, provincial (or federal, in the case of the Canada Labour Code (CLC)) health and safety officers (HSOs) must assess the factual matrix of the refusal on a case by case basis to determine whether the facts are persuasive”.

Additionally, they cite that “the specific language used to trigger a right to refuse unsafe work varies based on jurisdiction. For example, in Québec and Ontario, the threshold is that of a “danger”, and not merely a risk, while British Columbia’s sets the threshold at “undue hazard”. For federally regulated employers, the CLC sets the threshold at the existence of a danger. These different thresholds may result in a specific worker being justified to refuse to perform their work in one jurisdiction but not in another.

In a recent presentation to the Conference Board of Canada on March 19, 2020, Andrew Shaw of Baker Mckenzie LLP confirmed that, while employees have the right to refuse work that they believe is unsafe, you must understand what this means within your jurisdiction and its occupational health and safety legislation. When asked if an employee refuses to attend work because they are required to interact with people who have traveled to affected areas where COVID-19 is present, Shaw advised that this would not be a legitimate work refusal.

As with many things, there are exceptions, or special considerations to be given. If an employee were to disclose that they have an underlying health condition that puts them at a higher risk, and are in an essential role, Shaw said that this would be a circumstance where a work refusal could be considered. In such a case, the individual could apply for sick pay under the employers insurance (if available), or employment insurance (EI) program. The employer would not be expected to pay this employee if they are not working.

What we have learned is that it is important for workers and employers to:

  • Become familiar with your regional Occupational Health and Safety Legislation;
  • Work closely with your Joint Health & Safety Committee representatives to ensure workers safety concerns are being addressed;
  • Communicate your Pandemic health and safety plan and procedures with workers;
  • Act swiftly should a work refusal be brought forward, and follow the procedure laid out by your province.

Below are the definitions of ‘unsafe work’ according to the Right to Refuse clause across all Canadian jurisdictions.

Federal (Canada): Employees have the right to refuse work if “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

British Columbia: The right to refuse exists “…where a person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person”.

Alberta: A worker has “the right to refuse to carry out any work they reasonably think will put themselves, or others, in danger”.

Saskatchewan: Workers “have the right to refuse to do any specific job or task which [they] have reasonable grounds to believe is unusually dangerous.

Manitoba: Workers have the right to refuse work that they reasonably believe constitutes a danger to their safety and health, or to the safety and health of another person.

Ontario: “A worker has the right to refuse work that he or she believes is unsafe to himself/ herself or another worker. It also applies where there is a worker who believes that he or she is endangered by workplace violence may also refuse work.”

Québec: “A worker has a right to refuse to perform work that would expose him or another person to danger to his health, safety or physical well-being”.

New Brunswick: “All employees have the right to refuse work they believe is dangerous to their health or safety, or to that of others.”

Nova Scotia: “The right to refuse may be used only where you have such reasonable grounds to believe that your work is unhealthy or dangerous to yourself or someone else.”

Prince Edward Island: Workers have “the right to refuse unsafe or unhealthy work”.

Newfoundland & Labrador: “A worker may refuse to do work that the worker has reasonable grounds to believe is dangerous to his or her health or safety, or the health and safety of another person at the workplace”.

Yukon: Workers “can refuse to use machinery or equipment that poses a hazard to yourself or others. [They] can also refuse to do work where a condition exists that poses a hazard to [them] or others.”

Northwest Territories & Nunavut: Workers have the right to refuse work “if [they] are not sure how to do it safely and properly”; OR “if [their] work situation puts [them] or others in unusual danger”.

What procedures should be followed when an employee refuses to work for safety reasons?

The process for work refusals depends on the jurisdiction and the provisions of its health and safety legislation. For more information on the process in your region, please see the links below:

Canadahttps://www.canada.ca/en/employment-social-development/services/health-safety/reports/right-refuse.html
BChttps://www.worksafebc.com/en/health-safety/create-manage/rights-responsibilities/refusing-unsafe-work
ABhttps://www.alberta.ca/refuse-dangerous-work.aspx
SKhttps://www.saskatchewan.ca/business/safety-in-the-workplace/rights-and-responsibilities-in-the-workplace/duties-and-rights-of-workers
MBhttps://www.gov.mb.ca/labour/safety/wsh_faqs_right_refuse.html
ONhttps://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-v-right-refuse-or-stop-work-where-health-and-safety-danger
QChttps://www.csst.qc.ca/en/prevention/Pages/en_right_refuse_work.aspx
NBhttps://www.worksafenb.ca/workers/health-safety/your-rights/
NShttps://novascotia.ca/lae/healthandsafety/employeeright.asp
PEIhttp://www.wcb.pe.ca/Workplace/RightsAndResponsibilities
NLhttps://workplacenl.ca/site/uploads/2019/06/right-to-refuse-september-2015.pdf
YKhttps://wcb.yk.ca/QuestionResults/OHS/Rights-and-Responsibilities/Q0225.aspx
NWT and NThttps://www.wscc.nt.ca/content/steps-refuse-unsafe-work

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