Things are moving quickly and there is a great deal of confusion about one’s employment rights during the COVID-19 pandemic. An obvious and understandable concern is whether employees are entitled to refuse work because they fear for their own lives or the lives of their loved ones because of the coronavirus. There is a great deal of chatter online about employers “forcing” employees to work during the pandemic or not providing a safe enough work environment. These issues need to be addressed at least with respect to those who are still working as their employer has been deemed by the Ontario government an essential service.
Firstly, you cannot be “forced” to work. The days of indentured servitude are long gone and you can always quit upon providing your employer with an adequate notice of resignation. This may sound cynical but it is a legal fact. Of course you have a very palpable reason of needing to remain employed, i.e. your livelihood. However, strictly speaking, you do not have to work. Absent safety-related concerns, your failure to attend work or to perform your job is an act of insubordination and constitutes cause for dismissal at law.
Secondly, things become more nuanced if the reason for your need to quit is because, objectively-speaking, your employer fails to provide you with a safe work environment. A work environment is not “unsafe” merely because you have fears related to COVID-19 – such beliefs have to be reasonably held. You need to have reasonable grounds to state that your employer is not complying with minimal safety requirements. This has been the law in Ontario before the COVID-19 crisis and will surely remain so long after. However, employers must not be complacent about the pandemic either. Employers must not simply ignore that there is a risk of COVID-19. We would strongly advise all employers who have been deemed to be an essential service to make sure that they increase certain safety standards in order to limit their employees’ exposure to COVID-19 including having regard to social distancing as much as reasonably possible.
If you believe that your employer is failing to provide you with a safe work environment we suggest that you talk with your supervisor or a person responsible for health and safety in the workplace. If you work in a unionized workplace, contact your local union rep to address your concerns. Assuming you’re in the right, your employer would have to take reasonable steps to remedy the situation. If you are still unsatisfied, you may contact the Ministry of Labour, which will proceed to investigate the matter and determine if the employer has failed to address health and safety concerns at the workplace. It is important to note that your employer cannot terminate or discipline you for raising such concerns or for contacting the Ministry of Labour. Such an action on the part of the employer could constitute to an unlawful act of reprisal and lead to various forms of liability to the employer.
Thirdly, your employer may be under the obligation to accommodate you under the Ontario Human Rights Code, 1990, by allowing you to work from home if you have a protected ground that warrants so doing. For instance, if you have a disability that may require you to work from home and the employer is able to facilitate such an arrangement to the point of undue hardship.
Finally, frontline healthcare workers (all of whom should be commended for the work they do) are also entitled to minimal safety standards at the workplace. However, the nature of their job is inherently more within the danger zone and there are certain more obvious and “expected” risks associated with these sort of professions including first responders.
