Can Employees Refuse to Return to the Workplace? [Ontario]

On April 8, 2021, Ontario enacted a province-wide Emergency Stay-at-Home Order in response to growing COVID-19 case numbers.   This decision has resulted in some businesses being faced with further operational restrictions, closures, or returning their staff to work from home arrangements, where possible, for a period of 28-days. 

Understandably, many business owners will be focused on the re-opening of their operations, but will they be prepared for the hesitancy or full refusal of their staff to return to the workplace if they do not feel it is safe to do so?  Now, more than ever, it is important for employers to understand their responsibilities and the employee’s rights.

In Ontario, workplaces governed by the Occupational Health and Safety Act (a.k.a. “OHSA” or “the Act”), must:

1. Take all reasonable precautions to protect the health and safety of workers;
2. Ensure that equipment material and protective equipment are maintained in good condition;
3. Provide information, instruction and supervision to protect worker health and safety; and
4. Co-operate with the Health & Safety Representative or Joint Health & Safety Committee (where one exists).

Workers, conversely, have 3 basic rights:

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

When returning workers to the workplace, some staff may invoke their right to refuse unsafe work, based on a physical condition of the workplace (or their workstation) that they deem is likely to endanger them.  Employers should treat work refusals related to COVID-19 as they would any other work refusal, using the Work Refusal Procedures set out in the Act. 

Work Refusal is comprised of 2 stages, though the goal is to resolve the employees’ concerns at the first stage.

In the first stage, workers would report their refusal to work to their supervisor OR to their worker safety representative (where one exists).  Where the concern is COVID-19 specific, the employee should provide a clear and detailed reason for their concern (i.e., space does not allow distancing from co-workers), to allow the employer to investigate and respond to the concern.   The employer would typically investigate the concern with the worker and the safety representative (where one exists).  The employer must document the investigation and maintain as part of their health and safety records.

At the end of the investigation, the issue is either:

• Resolved and the worker returns to work, OR
• Not resolved, at which time the investigation proceeds to the second stage.

In the second stage, with reasonable grounds to believe the work is still unsafe, and the worker continues to refuse to return to work, the worker or the employer (or someone representing the worker) would call the Ministry of Labour (MOL) for guidance.  Typically, an Inspector from the Ministry would visit the workplace, investigate the concern, and review findings in stage one of the work refusal.  Upon completion of the investigation, the MOL will respond in writing. The MOL may either deem the workplace safe and instruct the employee to return to work, or they may order the employer to make changes within the workspace or job scope if the workplace is declared unsafe.

Before an employer invites the Ministry of Labour into their workplace, they should be prepared for a full health and safety inspection as part of their investigation.  While attending the workplace, an Inspector may ask to see specific documents like worker Training Records, a workplace Pandemic Plan or a Workplace Safety Plan.  If a business has not yet put a Workplace Safety Plan in place or provided workers with the required trainings, these should be completed immediately, as they are requirements by law, and failure to comply with legislated requirements may result in fines and/or orders issued by the MOL to the business.  

Don’t have a Workplace Safety Plan or Pandemic Plan in place?  Not sure what training your employees are required to have?  Don’t think these requirements apply to you because you have 5 employees or less?   Call us +1-647-776-7600 or send us an email hx@paymentevolution.com

HX Business Partners know small and mid-sized businesses and can help ensure your business compliant and safe.  HX is the new HR.