By Sean O’Donnell

These blog posts are meant to provide educational content and are not to be taken as legal advice.

Provincial governments in Canada have started to reopen the doors to our economy, meaning a return to the physical workplace is at the forefront of many people’s mind. Despite the relative slowdown and containment of coronavirus cases, the risk of contracting the virus nevertheless remains, and a vaccine is still far out of reach. Accordingly, both employees as well as customers/clients will be subject to a heightened risk as the lockdown slowly unwinds. For employees of reopening businesses, many are rightly concerned and have valid questions about returning to the workplace during the pandemic. This guide outlines several key considerations for employers in putting together return-to-work (“RTW”) plans, in addition to providing answers to important employee questions.  

Employer Duties under Occupational Health and Safety Legislation

First and foremost, employers have a duty under occupational health and safety (“OH&S”) legislation to protect the health and safety of their workers. Accordingly, employers are required to implement proactive and preventive measures to ensure workers are not exposed to conditions which may be harmful to their health and safety while at work. Each province is loosening restrictions, and providing varying levels of guidance, but any breach of a government order could expose an employer to fines, and potentially increased OH&S compliance risk. 

Return-to-work Plan

Before returning to the workplace, an employer must determine whether they can legally reopen their physical workplace based on the latest government orders and restrictions. In lifting restrictions, many provinces have released sector-specific guidelines, offering recommendations on how to keep both workers and customers/clients safe.

In order to effectively administer and enforce a comprehensive RTW plan, employers should consider the circumstances unique to their business, while also keeping in mind rules and regulations imposed by provincial authorities. This may include:

• An analysis of which staff will be returning first;
• How the workplace can be arranged to ensure social distancing;
• Limits on social gatherings/work meetings;
• Use of personal protective equipment (“PPE”);
• Having staff complete health screening questionnaires before starting their shift; and
• Infection, prevention, and exposure control.

What is appropriate in each industry, business, and workplace will vary depending on a range of factors including the number of employees, the layout of the workspace, and the nature of the work involved relative to the potential risk of transmitting COVID-19 (i.e. how close workers are to each other).

The Ontario government has provided useful sector-specific guideline to help protect workers, customers, and the general public from COVID-19. Ontario employers/employees can find guidelines relative to their industry here:

https://www.ontario.ca/page/resources-prevent-covid-19-workplace?_ga=2.163027579.651086337.1588278206-1543806143.1579546760 

What can employers do to reduce the risk of transmission of COVID-19?

Employers can reduce the risk of transmission of COVID-19 by identifying potential hazards in the workplace, such as high-traffic areas, commonly touched items, and shared facilities such as breakrooms, common areas, and washrooms. Once identified, employers must determine how these hazards can be eliminated or controlled. Any hazards which cannot be limited completely ought to be controlled. This may include reconfiguring the workplace to control the hazard using barriers or partitions. Employers can also consider staggered working schedules, therefore reducing the amount of personnel at the office at any given time. And of course, employers can minimize their exposure to workers by using PPE. 

Some additional common sense and reasonable precautions employers can consider include:

• Allow workers to work from home (“WFH”) where possible;
• Screen workers regularly for COVID-19 symptoms;
• Limit the shared use of products, machinery, and/or ensure adequate sanitation is provided following each use; and
• Use floor markers and posters throughout the workplace to remind workers to avoid social gathering and close contact.

Can an employee refuse to come back to work when a business reopens?

If employers properly follow the government’s guidelines for a safe opening and operation of their workplace during the pandemic, employees will be required to report to work. If an employee doesn’t return to work, and the workplace is deemed safe, the employer can treat the work refusal as a resignation, in which case the employee would not only lose their job, but they would also forgo their entitlement to severance pay and no longer qualify for government benefits such as the Canadian Emergency Response Benefit (“CERB”).

What are the steps in refusing unsafe work?

In Ontario, the Occupational Health and Safety Act (“OHSA”) gives a worker the right to refuse work that they believe is unsafe to himself/herself or another worker. The OHSA applies to employees of provincially regulated employers, which happens to be the majority of employers in Ontario. For federally regulated employers, such as banks, telecommunications, transportation, and mining, the Canada Labour Code (“CLC”) applies. Both share similar features of refusing unsafe work. A worker who falls under the OHSA and believes that he or she is endangered by workplace conditions may follow these steps:

First Stage:

1. Worker considers work to be unsafe;
2. Worker reports refusal to their supervisor/employer. Worker may also wish to advise the worker safety representative and/or management representative. Worker may stay in a safe place;
3. Employer or supervisor investigates in the presence of the worker and the worker safety representative; and
4. Either:
   1. Issue is resolved, in which case the worker must return to work; or
   2. Issue is not resolved, in which case the matter proceeds to the second stage.

Second Stage:

1. With reasonable grounds to believe work is still unsafe, worker can continue to refuse unsafe work and remain in a safe place. Worker/employer or someone representing same calls the Ontario Ministry of Labour (“MOL”);
2. MOL Inspector investigates in the company of worker, safety representative and supervisor or management representative;
3. Inspector gives decision to worker, management representative/supervisor and safety representative in writing; and
4. Changes are made if required or ordered. Worker returns to work. 

While each case is unique and will vary depending on the factual circumstances, there are certain types of workers who are not able to refuse unsafe work under the OHSA. The right to refuse unsafe work applies to all workers other than specified types of workers found in s. 43(1) and (2) of the OHSA. This includes: police officers; firefighters; workers employed in the operation of correction institutions and similar facilities; health care workers and persons employed in hospitals; nursing homes; sanatoriums, homes for the aged; psychiatric institutions; mental health centres; ambulance services; first aid clinics; and several more. These workers can only refuse to perform work they believe is unsafe if:

1. The work in question is not “inherent” in their work or a “normal condition” of their employment; and
2. The work refusal would not directly endanger another person’s health or safety.

Accordingly, nurses and doctors who are treating COVID-19 patients on a daily basis may not be able to refuse care as providing care for ill patients is inherent in their duties. However, if the employer has failed to implement the appropriate and reasonable safety measures required in the circumstances, such as providing PPE to staff, and the nurse/doctor is being asked to perform their duties without such equipment, the nurse/doctor may be within their right to refuse the work unless doing so would directly endanger another person’s health and safety. Whether something is “inherent” to a particular workplace and/or a worker’s duties will vary, and counsel should be sought regarding concerns to unsafe work practices or lack of safety equipment and/or procedures.

In light of COVID-19, various imperatives and guidelines have been issued to ensure the safe opening and operation of those businesses who have been given permission to reopen. Factors that will be considered in refusing to return to work due to COVID-19 and/or refusing to perform particular tasks of ones employment will depend on the nature of the workplace, the steps the employer has taken to mitigate risk, the applicable government guidelines to the industry, and the individual needs of the particular employee. Overall, employers will be required to ensure the appropriate preventative and remedial measures are in place to ensure they are meeting obligations under OH&S legislation. 

Accommodating employee requests not to return

As businesses begin to reopen, there will be myriad unique challenges that employees will face when requested to RTW. Employers should be particularly aware of higher-risk employees who stand at a greater risk of contracting COVID-19 or risk having a more severe reaction to the virus. Employees who are older in age, have weakened immune systems, and/or have underlying health conditions (especially pre-existing respiratory illnesses) will be most vulnerable. Accordingly, employers should consider implementing a self-disclosure policy whereby employees can be forthcoming with their health conditions (without disclosing any personal details or sensitive medical data), as well as having those at higher risk remain under WFH measures. 

What about childcare considerations? 

At the time of writing, schools and daycares in Ontario have yet to reopen and the immediate outlook to reopen remains bleak. If an employee has childcare obligations, and an employer has requested the employee return to work but the employee cannot find suitable arrangements, it is important to know that employers in Ontario have a duty to accommodate employees under the Ontario Human Rights Code (the “Code”).

Under the Code, an employer cannot discriminate on the basis that an employee has childcare obligations, also known as “family status”. In practical terms, this means that an employee may be entitled to accommodation from their employer to the point of undue hardship for their family status-related circumstance. The law relative to what an employee needs to demonstrate in order to warrant accommodation on this basis can be complex and will vary in different jurisdictions. What can be said, however, is that it requires more from an employee than informing their employer that they have childcare obligations and therefore require WFH accommodation. Employees have a duty to cooperate and exhaust all reasonable solutions in the circumstances. This may include asking family members, thoroughly reviewing the latest daycare options, and proposing a modified work schedule in order to facilitate both work and childcare obligations. 

The first step in the process should be a cordial and honest discussion with the employer relative to a common goal suitable for both employer and employee. Employers ought to be careful not to discriminate or take unreasonable positions when approached by their employees’ family status needs. Employers and employees should consider examples of accommodation such as a flexible work schedule, reshuffling of duties, and reduced hours of work in exchange for reduced pay. As previously mentioned, the level of accommodation required on the part of the employer will vary and is determined based on the individual circumstances of the employee. Employment counsel should be sought if you believe your employer is not meeting its obligations under the Code.

A Brief Thank You

At SJO Legal Professional Corporation, we would like to take this opportunity to thank our front-line workers, healthcare personnel, grocery store staff, and all those who are making a difference in the fight against COVID-19. We would also like to thank our clients for entrusting us with their matters during this time. We look forward to supporting you, the community, and all of Canada. Please stay safe.

Should you have any questions regarding the above, or have a question related to an employment matter not contained within the subject of this article, please contact us today.

Sean J. O’Donnell, Owner and Principal: sodonnell@sjolegal.com

Carter G. Perks, Articling Student: cperks@sjolegal.com