What if they don’t return to the workplace?

As we slowly enter the next phase of the pandemic and businesses start to reopen, some employees are refusing to return to work. They offer a number of reasons for their refusal, from a general fear of being exposed to Covid-19 to a concern about the safety of a particular workplace. Others who have been working from home for more than 10 weeks want to continue doing so.

What rights do employees have in these circumstances, and when can an employer insist on the employee’s return?

refusal to work

Employers have a duty, under occupational health and safety legislation, to provide a safe and healthy workplace. They are required to implement measures to ensure that workers are not exposed to harmful workplace conditions. Employees have the right to refuse unsafe or dangerous work.  The various federal and provincial statutes set out the procedure a worker must follow when concerned about workplace safety.

Generally, the worker must be able to identify the specific concerns with the workplace, report it to the appropriate person and the employer is required to investigate. If the worker’s concerns are not addressed a government inspector will then investigate. If the workplace is deemed safe, or the investigator issues orders, and the employer complies, the worker must return to work or risk being deemed to have resigned. Raising a workplace safety issue in good faith is an employee’s right, and they cannot be disciplined or terminated for doing so.

Both the provincial and federal governments have published guidelines to help employers carry out their duty to provide a safe and healthy workplace.

The Province of Ontario worked closely with four health and safety associations to develop guidelines specific to certain industries and sectors, including a specific guideline geared to the transportation industry found here.

Transport Canada collaborated with the Public Health Agency of Canada and Employment and Social Development Canada (ESDC) to develop guidelines specific to the trucking industry, to protect drivers and employees working in commercial vehicle operations.

While the Ontario and federal guidelines are just that — guidelines and recommendations, and not laws — employers should review these guidelines and implement them where appropriate.  Investigators looking into a work refusal based on an unsafe workplace will no doubt refer to the government guidelines.

Separate and apart from the unsafe workplace issue, some employees are refusing to return to work because they are concerned about using public transit or because of a fear of being exposed to Covid-19.  Generally, these concerns or fears do not excuse an employee’s absence from the workplace, and an employee’s failure to return to work when required by the employer may amount to a resignation or abandonment of their position.

Similarly, some workers who were able to work at home during the first phase of the pandemic, want to continue doing so.  Employers should first review and comply with any workplace policy regarding remote work and, if there’s no such policy, the employer is within its right to require the employee to return to the workplace.

However, in either case, an employer must consider whether the refusal to return to work, or the request to continue to work from home, raises a human rights issue, such as the need to be at home to care for a child (family status) or if the employee has a medical condition that puts them at risk if they become sick because of Covid-19 (disability).  If so, the employer has a duty to accommodate the employee, to the point of undue hardship.

The employer and employee must work cooperatively during the accommodation process to arrive at the appropriate form of accommodation – the employee’s preferred form of accommodation (such as staying home) may not necessarily be what is appropriate or required.

Read how some fleets might make telecommuting a permanent strategy.

Carole McAfee Wallace

Carole McAfee Wallace is a partner at Fernandes Hearn LLP, and can be reached at 416-203-9551. This column is intended for information purposes only and does not constitute legal advice.

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  • Really refusing to go back to work, i havent stopped working as a truck mechanic. My workplace makes me use a hand scanner to punch in. We have agency people coming in using the same scanner and god only knows how clean they are. Oh but supply us with hand sanitizer which make you would is that really safe. My hands are nornally dry because I constantly wash my hands even before this began
    But now with using ACME hand sanitizer which who knows what is in it my hands are so dry They have crevasses that are like the grand canyon.