Employee rights to refuse unsafe work during COVID-19
All workers have the right to a healthy and safe workplace. As such, they have the right to refuse unsafe work – in other words, they may refuse work that they believe has the potential to harm themselves or others at the worksite. In B.C., the work refusal process is set out in the Occupational Health and Safety Regulation.
All workers have the right to a healthy and safe workplace. As such, they have the right to refuse unsafe work – in other words, they may refuse work that they believe has the potential to harm themselves or others at the worksite. In B.C., the work refusal process is set out in the Occupational Health and Safety Regulation.
COVID-19 is a serious global pandemic that has posed a significant risk to health and safety in certain settings. Workers may be concerned about the risk of exposure, and seriously consider refusing to work due to unsafe conditions. At the same time, workers cannot refuse work simply because COVID-19 exists. Refusal to work must be predicated on a reasonable belief that the worker is at risk for serious illness.
That reasonable belief could be justified where an employer has not properly managed the risk of exposure at the worksite. Therefore, it is important that employers establish reasonable protocols for mitigating risk as much as possible.
WorkSafeBC has published various guidelines for what employers should do to properly prepare the workplace in the wake of COVID-19. A guide for employers, “Preventing exposure to COVID-19 in the workplace” is also available.
During this time, it is also essential that employers remain responsive to worker concerns about the measures that are in place to promote their health and safety. It would be prudent to communicate these measures in a circular or policy prior to the employees returning to the workplace.
Safety Measures
Public health authorities in B.C. have provided some direction as to which measures are most effective in curtailing the spread of COVID-19. Below is a list of measures (referred to by the Centre for Disease Control) as a “hierarchy of controls” for hazardous situations such as pandemics) which employers can undertake. This table is taken from the B.C. Centre for Disease Control website and was used in a recent presentation by Dr. Bonnie Henry to demonstrate the most effective preventive measures for workspaces.
It is recommended that a similar chart, with a list of specific measures that employers have implemented, is provided to returning workers so that they understand that much of the responsibility and control for preventing the spread of the virus or contracting the virus is in their hands, but also to inform them of the measures the employer has taken in each area.
For example:
- Physical distancing
- Policies to ensure workers stay at least 6 feet apart and enough space to make this possible; signage to remind employees of this requirement.
- Engineering controls
- Ventilation
- Physical barriers to kitchen sites or removal of chairs in boardrooms or lounge areas
- Plexiglass between workers with the most exposure to visitors or clients
- Rope barriers or tape barriers to prevent the use of game areas or small lounge areas
- Administrative controls
- Work from home
- Stagger schedules
- Hand hygiene
- Dots in lounge
- Personal Protective Equipment
- Masks, respirators, gloves
(Figure is taken from the B.C. Centre for Disease Control site, used in a presentation by Dr. Henry.)
Some workplaces may also be considering the implementation of temperature checks. Where this is done, the following considerations should be kept in mind:
- Provide notice to workers about the temperature checks and why they are necessary
- Qualified personnel and training for administering checks
- Use the least intrusive method available
- Ensure that workers’ privacy rights are protected
Suggested Next Steps for Employers
While the COVID-19 crisis is not yet behind us, we continue to adapt to the new reality. In the coming weeks, it is anticipated that more concrete details about the reopening strategy will become available.
As workplaces shift towards recovery, employers should:
- Carefully assess best practices which can be put in place to protect the business, workers, and clients
- Entertain a pre-return to work walk-through of your facility with a limited group of staff to highlight areas of concern and obtain feedback
- Share information with employees prior to their return about steps taken and requirements and protections which have been put in place
- Set up a workplace health and safety committee prior to the return of employees which includes employees from different areas of the business. Ensure this committee meets regularly, takes notes, and takes action with respect to concerns raised by staff or patrons
- Ensure leadership is modeling required behavior
- Potentially entertain a phased approach to a full return to allow employees time to adapt
- Remain flexible and transparent
- As Dr. Henry says: Be kind, be calm, be safe!
Learn more at our COVID-19 Resource Centre.
Disclaimer: The legal ramifications of the global COVID-19 crisis are constantly changing. The information contained in this document is general only, may not apply to your specific situation, and is not intended to constitute legal advice. For tailored advice pertaining to your particular situation, please reach out to counsel.
Sarah Hentschel is a Senior Associate in our Litigation & Dispute Resolution Group and focuses on Workplace and Privacy Law. Anna Fei is an Articling Student at Watson Goepel LLP.
