Forrest Donaldson, HR Business Partner, has researched and compiled advice on responding to work refusals related to COVID-19. This post first contains key points, then dives into more situation-specific advice:
For Essential Businesses
The presumption for business marked essential by the government is that all aspects of work go into the essential end product. It is not for the employee to determine whether their work is essential. The idea is that all work in the company feeds into the final product.
For Remote work
If an employee can do work remotely, then they can not make a legitimate refusal of work. You can’t require that the employee with the work refusal work in an office environment, but they do need comply with safe alternatives like working remotely in their own homes.
Privacy When Tested Positive
What can you do as an employer if someone has COVID-19? Sharing the news is an obligation, however it’s important to still respect privacy. A compromise is share that someone in the workplace has tested positive for COVID-19 but not reveal who.
Hiding the case of COVID-19 is not a great idea; people need to know because of the easy manner with which it is transmitted (see this advisory from Health Canada for official, up to date transmission information). Thus, sharing that someone has tested positive is relevant information for all involved to know.
Process When a Refusal is Made
The current recommendation for what to do when a work refuse is made is to follow through with the normal investigation process for work refusals.
If the results of the investigation are not taken seriously by the refuser, employers are able to discipline an employee (i.e. if an employee refuses to come into the office even after a ministry of labour investigation indicating doing so is safe).
Other important things to note/F&Q
These notes are primarily based off a great webinar held by Emond Harnden Labour & Employment Law.
- For an employee to use the right of refusal, there needs to be a reasonable expectation of danger in the here and now, or there needs to be at/going to work a situation where there is a reasonable expectation of danger at work. It is not enough to have a presumption of being unsafe without first-hand experience.
- If an employee says, “I’m not showing up because I could get COVID-19” Keep in mind definition of danger under relevant legislation. Federally, the labour code qualifies work refusal with a reasonable expectation of danger. So ask: is the expectation that the employee may be exposed to COVID-19 reasonable?
- In Ontario: employers are permitted to assign alternate work for an employee refusing to work while conducting an inspection. If an employee refuses to come to work at all, employers may have some nuance in terms of whether have to pay the employee as you cannot assign alternative work if the employee is refusing to show up at all.
- Those who work in law enforcement, etc. still have the right to refuse, but can’t refuse when circumstances are part of normal condition of that type of work or if refusing to work could jeopardize the health and safety of another person. Impact on caretakers in long term care homes. However, if there is a requirement for personal protective equipment (PPE) but PPE isn’t available, and that lack of PPE is out of line with the normal behaviour of the workplace, that may allow for refusal.
- Even if, as an employer, you think you have an exception to the provincial right to refusal, do the investigation regardless as that is your formal record. If a refusal to work is in bad faith OR if the employee continues to refuse work after the Ministry of Labour completes their investigation, you can discipline. To discipline: done after confirming there is no danger and that the employee is continuing to behave improperly. It would be best if you were careful as reprisal cases are complicated, and with current conditions, you might find you are put under a microscope, and as an employer, it is an uphill battle.
- Federal: employers can discipline if willfully abused the code, but it’s a high standard to meet.
- Your investigation is going to be exhibit A in a trial and the Ministry’s investigation exhibit B, so you’ll want to control what you can control (i.e.. make sure that your response to a work refusal is very understanding of the employee’s concerns, and make sure investigation is extensive and detailed).
Remember, you will need to let the whole process unfold: from the initial refusal of work, to the investigation, rejection of investigation by the employee, and the ministry investigation.
- As an employer dealing with the COVID-19 pandemic: provide reassurance at the start – be very communicative with employees by explaining all the reasonable precautions in the workplace. Make sure you are communicating with employees on safety measures being taken (i.e. if you are now wiping down a glass door multiple time daily, tell your team). Follow the most up-to-date gov’t recommendations and show it. If an employee has symptoms get them out of the workplace, then clean their area thoroughly. If you’re doing all those steps and employees don’t know, their anxiety will rise inappropriately.
- Comparison: in SARS, employers who set their standards to provincial health advisories found themselves in better position in court afterwards.
For the situation of an employee refusing work due to having to take public transportation: this is a more speculative concern if the employee has no underlying health conditions as public transport is still being operated by the gov’t officials who are providing us with health advice, so we are presuming it is done in safe manner. You can provide other options to get to work (can they carpool with family, bicycle etc.), to be shown as accommodating. Know however an employee likely will push back on the original claim.
- If employee flat out refuses to work, employers can: let them know there is work for them to do on-site, and if they still refuse you can deem them to have quit. To avoid legal hoops, you should follow up on why refusing work as it may not be applicable to unpaid leave and impact their benefits. You can declare they are abandoning work/have quit. We recommend tolerance, but tolerance isn’t endless (consider the other side of current extreme conditions, being that we need people working in jobs they can still do).
- What about if an employee refuses to work because no one can watch their kids? Answer: That is thorny and brings up issues of family status and your duty as an employer to accommodate. In Ontario, employees can take unpaid leave to care for their families, so guide towards that option (if possible).
- If your business falls under the label of essential but the employee doesn’t understand why: explain that the presumption which qualifies a business as essential is that all aspects of work contribute to an end product that is essential. It is not up to the employee to determine whether work is essential. Again, the idea is that all work within a company feeds the final product; if said company is deemed essential and still open, you can make this point to employees.
- What if you can’t guarantee social distancing? If social distancing/adequate spacing between people isn’t possible and an employee refuses to work, this may be a legitimate refusal and you may have to reduce your workforce to ensure proper spacing is possible.
Sources and More information
A few key sources for the above information are:
- ESA – what employers need to know
- Ontario COVID-19 Resource Centre
- Webinar on the topic by Emond Harnden Labour & Employment Law
To learn more about work refusals:
About the Author
Forrest Donaldson is an HR Business Partner here at Business Sherpa Group. He has spent the last few years focusing on recruitment and truly enjoys sharing his knowledge on the subject. You can find out more about Forrest or how the Managed Recruiting process works for employers below.