The provinces are opening back up and various guidance has been issued to employers regarding how to do so safely, but the virus still exists and it’s still contagious. Governments who have been encouraging people to stay home are now contemplating how to get people to go out when really conditions regarding the virus have not drastically changed. This juxtaposition will have an impact on workplaces.
Employee work refusals
We can anticipate that some employees will refuse to come back to work, even if they have been recalled and even where the employer has followed government guidance on how to make a return to work safe. What should employers do with these employees?
In Ontario, the Occupational Health and Safety Act (OHSA) allows employees to refuse to work where she or he believes that conditions are unsafe. You can read more about the right to refuse unsafe work in the Ontario Guide to OHSA.
Does the existence of the coronavirus make work unsafe?
Whether or not the existence of the coronavirus is sufficient to constitute a valid reason for an employee to refuse work is an open question, but the threshold in Ontario is high – work must be dangerous and not merely risky.
Work could be dangerous to a particular employee if he is somehow especially vulnerable. Work could also be dangerous if the employer is not taking precautions or following appropriate guidance.
Calling in the Ministry of Labour
There is a specific process to follow when an employee asserts a work refusal under OHSA, with calling in the Ministry of Labour (MOL) to make the determination being a final step. We can expect the MOL might be pretty busy as more and more people are expected to go back to work.
If a workplace is determined safe, and an employee continues to refuse to return to work, then in many cases an employer may be able to terminate the employment relationship. Employers do need to keep in mind that some employees may be entitled to job protection under the Ontario Infectious Disease Emergencies Leave.
Employee privacy concerns
Employee privacy also needs to be kept front of mind as workers return. For example, is it a reasonable invasion of the employees’ privacy to take their temperature as they walk through the door each morning? What if one employee falls ill? Do all the other employees have a right to know who the sick employee is? The answers to these and other questions that will come up as we slowly try to adjust will depend on the specific circumstances, bearing in mind the need to balance safety and the individual employee’s privacy rights.