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The Economic Restart of Ontario and the Right to Refuse Unsafe Work
20 May 2020
By Jennifer Zeilikman
The Economic Restart of Ontario and the Right to Refuse Unsafe Work

Ontario has begun the first stage of restarting its economy after the now months-long shutdown due to COVID-19.  As the economy restart grows in momentum, employees will be returning to work in larger and larger numbers.  As such, the people of Ontario need to start thinking more seriously about workplace safety specifically related to COVID-19.  Thus, although the regulatory framework surrounding unsafe work refusals are not new in the eyes of the law, their application has now become a serious matter of immediate concern for many.

The right to refuse unsafe work is governed by legislation called the Occupational Health and Safety Act (“Act”) in Ontario.  The ability to refuse unsafe work is broad. A worker may refuse work when:
 
1) any machine equipment or tool that the worker is using or is told to use is likely to endanger himself or herself or another worker; 
2) the physical location of the workplace or workstation is likely to endanger himself or herself;
3) workplace violence is likely to endanger himself or herself; or
4) any machine, equipment or tool that the worker is using, or the physical condition of the workplace, contravenes the Act or regulations and is likely to endanger himself or herself or another worker. 
 
Employers should know that during the “first stage” of the process, the worker who has reasonable grounds to believe that work is unsafe will report his or her concerns to the supervisor, employer or someone who is in charge over safety at the workplace. The employer and / or supervisor would then have to investigate the situation in the presence of the worker. If the issue is resolved, the worker will go back to work. A worker is entitled to get paid during the “first stage” at their normal rate. If reasonable safety concerns remain outstanding, the matter will proceed to the “second stage.”

During the second stage, assuming that there are reasonable grounds to believe work is unsafe, the worker may continue to refuse work while remaining in a safe place. The worker or employer would contact the Ministry of Labour (“MOL”) in which case a MOL Inspector will investigate the unsafe place or practice in the presence of the worker and an employer representative. 

Following the aforementioned investigation, the MOL Inspector will render a decision in writing to both the worker and the employer representative. Changes, if any, arising out of the written decision would then expected to be implemented by the employer. 
 
During the MOL investigation the worker may be offered other work if it does not conflict with a collective agreement (if the workplace is unionized) or the worker’s individual employment contract in non-unionized settings. An employer may offer the refused work to another worker, however, on the condition that the employer inform the new worker that the work offered is the subject of work refusal. Moreover, any such offer must be made in the presence of a joint health and safety committee who represents the worker, a health and safety representative or a worker who because of his or her “knowledge, experience and training is selected by the trade union that represents the worker or, if there is no trade union, by the workers that represent them.” The second worker has the same right to refuse work as the first worker. 
 
An employer cannot suspend, discipline or terminate an employee who seeks to enforce a right under the Act per se. However, an employee may be subject to lawful discipline and / or termination after the employer has gone through the necessary steps, the workplace has been deemed safe and the employee still refuses to attend or perform work. 
 
The right to refuse work applies to most workers in Ontario with the exception of workers for whom certain occupational risk and hazard such as firefighters, police, healthcare workers, etc., is an inherit part of the job requirement. However, even these occupations entitle workers to basic safety standards. 
 
It is advisable for both employers and employees to familiarize themselves with some of the rules concerning work refusal to avoid future conflict.   Employers in particular need to set in place strict protocols in order to prevent the spread of COVID-19 and minimize complaints to the MOL related to safety.  
 
The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.