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When does COVID-19 pose an ‘undue hazard’ in the workplace?

Many B.C. businesses are facing a new challenge: employees are refusing to come to work given their fear of contracting COVID-19. While employers want to ensure that their employees are safe and healthy, they also have businesses to run.
jennifer_russell

Many B.C. businesses are facing a new challenge: employees are refusing to come to work given their fear of contracting COVID-19.

While employers want to ensure that their employees are safe and healthy, they also have businesses to run. And so long as they are complying to the best of their ability with the orders of the health authorities, they are arguably providing a sufficiently safe workplace and have a reasonable basis to deny employee requests to not come to work or to be laid off as a result of general concerns related to COVID-19.

What are the rights of employees to refuse to work due to COVID-19?

All workers have a right to a working environment that protects their health and safety. Provincial regulations allow B.C. workers to refuse to work when they have reasonable cause to believe that to do so would create an “undue hazard” to the health and safety of any person.

Whether a work refusal based on the above or other grounds is reasonable will depend on individual circumstances, including the vulnerability of employees over the age of 65 to COVID-19.

An “undue” hazard creates an excessive or unwarranted risk of injury or occupational disease. Ultimately there must be an objective basis for a continued refusal for unsafe work.

It is possible that the COVID-19 pandemic may create the basis for a legitimate work refusal. An employee’s right to refuse to perform work as a result of COVID-19 will be contingent upon factors including:

•the state of the COVID-19 situation in the worker’s city, region, province and workplace at the time the refusal to work is being exercised;

•the age and health of the specific worker;

•the specific field of work and his or her normal duties or tasks;

•the number of workers and whether social distancing is possible;

•the measures adopted by the employer to prevent the transmission of COVID-19, including workplace hygiene and personal protective equipment (PPE); and

•whether another employee has been diagnosed with COVID-19.

Employers’ obligations when faced with a COVID-19 based work refusal

In the event of a safety-based work refusal, the employer must respond in accordance with the OHS Regulations which require an investigation into the concerns and, if appropriate, the adoption of measures to eliminate or reduce the workplace danger without delay. If the employer believes that the employee’s safety concern is not valid, and the initial process does not resolve the matter, there are additional investigative steps required including the possible involvement and decision of a WorkSafeBC prevention officer.

Strategies for minimizing work refusals

The best strategy available to employers during the COVID-19 pandemic is to implement appropriate protective measures by following the latest guidance of the provincial and federal public health authorities. Doing so will help support the employer’s position that it is providing adequate protections and a sufficiently safe workplace that does not justify work refusals.

Based on current guidance from the federal and provincial public health authorities, these measures should include:

•restricting individuals from the workplace based on the official criteria for recommended or required self-isolation, including returning from travels outside Canada;

•requiring employees who have even mild COVID-19 symptoms, as recognized by the public health authorities, to stay at home, contact public health authorities and follow their directions;

•encouraging social distancing to reduce transmission, which may include facilitating remote work arrangements and rearranging the workplace for other workers as practical; and

•promoting good hygiene practices, including frequent hand-washing, avoiding the touching of one’s face with unwashed hands, coughing or sneezing into one’s elbow and ensuring the regular cleaning of high-touch surfaces throughout the workplace.

Conclusions and advice

While it is impossible to force someone to work, if an employee chooses to stay home in the face of clear directions from an employer and a finding that there is no undue hazard caused by the workplace, it could affect that worker’s eligibility for employment insurance or the Canada Emergency Response Benefit. It may also constitute grounds for discipline or termination. Where no “undue hazard” is identified through the employer’s or WorkSafeBC’s investigative process, the refusal to work is unjustified and the worker is no longer protected by the discriminatory action provisions of occupational health and safety regulations. •

Note: This article was current to the morning of March 30, but the pandemic and the responses of federal and provincial governments continue to evolve, and this may impact the accuracy of the information in this article. If in doubt about whether anything in this article is still current, please do not hesitate to contact Roper Greyell LLP.

Jennifer Russell is an employment, labour and human rights lawyer and a partner at Roper Greyell LLP. This article is for general information purposes and does not constitute legal advice.