In recent days, several Canadian provinces have announced plans to slowly re-open businesses that were closed at the start of the coronavirus pandemic.
British Columbia premier John Horgan announced Wednesday that restrictions will slowly start to lift in mid-May, beginning with small gatherings and elective surgeries, and Ontario Premier Doug Ford is allowing garden centres and hardware stores to re-open to the public on May 8.
Meanwhile, stores in Quebec — the province that accounts for roughly half of Canada’s infections — were allowed to gradually reopen on Monday, and construction and manufacturing companies have been given the green light to do the same on May 11.
These business re-openings mean employees across the country will be asked to return to work — but what if you don’t feel safe to do so because of COVID-19?
Can you refuse to return to work, or will you lose your job?
According to Katherine Lippel, law professor at the University of Ottawa and Canada Research Chair in occupational health and safety law, the answer will be different for everyone.
“The first thing I would do, if I was somebody who was asking myself whether I can refuse , is contact my union,” Lippel said.
“ 30 per cent of Ontario workers and 40 per cent of Quebec workers are unionized, and the unions are often developing collective responses to these .”
For all workers, Lippel recommends seeking personalized legal advice that is specific to your situation.
For example, if you work on an assembly line and you’re asked to return to work where you stand right beside your colleague and right in front of another colleague — this would not be considered physical distancing.
“If you ask those questions and you’re told that … nothing has been done, then it looks like you should be able to exercise your rights,” Lippel said.
That said, it’s important to keep in mind that the coronavirus pandemic is an unprecedented situation, and the impact it will have on the workplace will be on a scale never before seen in our lifetime.
You need to go to work before you can refuse to work
Each province and territory also has an occupational health and safety act — with provisions specific to that jurisdiction — and most include some version of the right to refuse unsafe work.
“An employee say, ‘I feel that this machine is unsafe to work on. I’m going to stop work and I’m going to tell my supervisor it’s unsafe,'” said Jennifer Heath, partner at Piccolo Heath LLP in Toronto.
“The supervisor will investigate, make changes if they’re necessary to ensure the work is safe, or tell the employee, ‘No, I think it’s fine.'”
An employee who still feels unsafe can call the Ministry of Labour in their jurisdiction and an investigation will be conducted.
How that should be interpreted in the time of COVID-19 is “not clear,” Heath said.
“I would think that employees still need to report to work, and it’s only if they feel unsafe upon attending work that they can actually refuse.”
Heath doesn’t think employees will be able to refuse to attend work outright, especially if employers have instituted safety precautions.
“It has to be based on something real. It can’t just be, ‘I’m scared,'” said employment lawyer Kathryn Marshall. “Is there some condition in the workplace that is making you feel this way?”
Maybe your workplace doesn’t have the ability to comply with physical distancing, or your employer isn’t providing hand sanitizer.
If you simply don’t show up to work, you need to provide your employer with a reason why you didn’t come in.
“Was your refusal to come into work reasonable?” Marshall said.
“At the end of the day, normally a refusal to come into work is considered abandoning your job and is grounds for your employer to fire you.”
If you’re presumed to have abandoned or resigned from your job, you are no longer eligible to collect money from the Canadian Emergency Response Benefit.
Gaps in the law
Lippel believes there’s a major gap in what factors are considered when deciding if a worker is “safe” in Canada.
“It’s one thing to be able to say, … ‘The workstation is safe and we’ve got all the equipment in place.’ What if people have to take the subway to get to work? Is that safe right now?” she said.
“To the best of my knowledge, no regulatory framework answers that question adequately in Canada.”
In Canada, it’s not the employer’s problem how workers get to work, Lippel said.
“In Europe, for instance, will cover an accident that occurs on your way to work,” she said. “That’s not true in any Canadian jurisdiction.”
In Lippel’s point of view, employee rights need to be updated to better protect workers in a post-pandemic world.
“What should we be doing as a society to make sure that we protect the vulnerable?” Lippel said.
“ to make sure that there’s flexibility for workers so that they can’t return to work if, in doing so, they will put their own house in jeopardy?”
These are all questions that need to be clearly answered in each jurisdiction before more workplaces open up, Lippel said, or else there will be “thousands of people being fired and then thousands of individuals trying to get their jobs back.”
“This is not good for anybody’s physical, mental or economic health,” she said.
The frustrating part, Lippel said, is that there are currently several emergency measures being adopted, including from the federal level.
“It’s possible to create emergency response regulations to make sure that people who are more vulnerable, for instance, continue to receive a benefit and are protected from being fired if they … don’t want to return in dangerous circumstances,” Lippel said.
Without steps taken now to clarify the law, Marshall believes there are going to be “a lot of complaints and a lot of litigation” over this in the future.
She says it’s helpful to look at what happened after the SARS outbreak to predict what could happen in the coming months, but on a much larger scale.
“During the SARS period, we saw some disputes. … There’s going to be way more in the case of COVID-19,” Marshall said. “I think it will be interesting to see what the recommendations are.”
It’s also going to vary drastically from industry to industry.
“What you’re going to require to be safe in a healthcare workplace is going to be different than someone who works in an office,” Marshall said.
“If you’re working in an office with 20 people and you’re not dealing with the public at all, … will you be able to refuse work because your employer isn’t giving you ? Probably not.”
Lior Samfiru of Samfiru Tumarkin LLP also expects a lot of “confusion” because the rules about what makes a workplace safe in the eyes of the government during the pandemic haven’t always been clear and are often changing.
“I expect many work refusals and a lot of government inspectors being called into workplace,” he said.
“I think you’re going to see a lot of this confusion and a lot of people doing what they believe is right when it’s probably not actually right.”
If you’re an employee nervous about re-entering the workplace, a good place to start is an open, honest discussion with your employer.
“Talk about what can be done … to make you feel safe and make the workplace more conducive to working,” Samfiru said.
“I think a lot of employers are going to be receptive.”
Questions about COVID-19? Here are some things you need to know:
Health officials caution against all international travel. Returning travellers are legally obligated to self-isolate for 14 days, beginning March 26, in case they develop symptoms and to prevent spreading the virus to others. Some provinces and territories have also implemented additional recommendations or enforcement measures to ensure those returning to the area self-isolate.
Symptoms can include fever, cough and difficulty breathing — very similar to a cold or flu. Some people can develop a more severe illness. People most at risk of this include older adults and people with severe chronic medical conditions like heart, lung or kidney disease. If you develop symptoms, contact public health authorities.
To prevent the virus from spreading, experts recommend frequent handwashing and coughing into your sleeve. They also recommend minimizing contact with others, staying home as much as possible and maintaining a distance of two metres from other people if you go out.
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