Under occupational health and safety legislation across Canada, most employees have the right to refuse work if a condition of the workplace “is likely to endanger” their health or safety. Certain employees are exempt and cannot use the right-to-refuse work mechanism because of the nature of their employment (e.g., police officers, firefighters, correctional officers, paramedics and hospital workers)
Employees encountering a disease outbreak in the workplace (or who fear that they may encounter it) may seek to exercise their right to refuse work in this regard. In some cases, an employee may wish to refuse a travel assignment to the epicentre of an outbreak or other high-risk places. For example, a flight attendant could use their right to refuse dangerous work on flights to the epicentre.
Employers have to assess the right to refuse work situation carefully on a case-by-case basis and follow the right-to-refuse work processes already established in law. In addition, employers cannot threaten to discipline an employee exercising a work refusal.
When faced with a work refusal, the employer should immediately investigate the reason for the work refusal in the presence of a health and safety representative or joint health and safety committee member, consider this right to refuse work and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. Failing resolution with the employee, the employer must notify a Ministry of Labour inspector who will come to the workplace and assess the situation and render a decision.
A worker who exercises a right of refusal must still be paid until the situation is resolved with the employer or the Ministry of Labour.