Right to Refuse Unsafe Work in the COVID-19 Pandemic20-Mar-20
By McLennan Ross Labour & Employment Team
The Alberta Occupational Health and Safety Act (“OHS Act”) is intended to protect workers and non-workers from hazards at Alberta governed work sites. The OHS Act provides workers with certain rights which include:
- The right to be informed of the workplace hazards and how to eliminate or control them;
- The right to meaningful participation and expression about health and safety concerns;
- The right to refuse dangerous work; and
- The right to work without being subject to discriminatory action for exercising rights under the OHS Act.
One issue that is certain to arise at Alberta work sites is when a worker refuses to work over concerns about the presence of Covid-19 at the work site. As mentioned, the OHS Act provides workers with the right to refuse dangerous work. However, this right is subject to specific employer and worker duties and procedural steps under the OHS Act, as outlined below.
This memo is meant to outline the employer’s health and safety duties and how these may apply to the right to refuse dangerous work in the current context of the COVID-19 outbreak.
General Duties of Employers and Workers
The OHS Act sets out a number of general and specific duties for various parties functioning at work sites including employers, workers, owners, suppliers, contractors, etc.
Section 3 of the OHS Act imposes a general duty on employers to ensure the health and safety of workers as far as reasonably practicable. This general duty applies to anyone at the work site affected by the work of the employer whether they are engaged in the work of the employer or not. This general duty includes amongst other things:
- Ensuring workers are aware of their rights and responsibilities under the OHS Act;
- Establishing a joint work site health and safety committee (“JHSC”) or health and safety representative (“HSR”) as defined under Part 3 of the OHS Act;
- Consulting and cooperating with the JHSC or HSR; and
- Adequately training workers in health and safety matters.
Workers also have duties under the OHS Act, which include amongst other things:
- Taking reasonable care to protect their own health and safety and the health and safety of other people at or near the work site;
- Cooperating with the employer for the purpose of protecting the health and safety of workers;
- Using personal protective equipment (“PPE”) at all times when required; and
- Reporting to the employer or supervisor any concerns about an unsafe or harmful act at the work site.
The Right to Refuse Dangerous Work
Section 31 of the OHS Act permits a worker to refuse work if the worker believes on reasonable grounds there is a dangerous condition at the work site or that the work constitutes a danger to the worker’s health and safety or to the health and safety of another worker.
What constitutes a “dangerous condition” is not defined in the current OHS Act; however, Alberta OHS describes it as something that is “not normal for the job” or “normal hazards that are not properly controlled”. Alberta OHS suggests that while a worker is obligated to bring theoretical, anticipated or potential risks to the attention of the employer, they do not constitute grounds for a refusal to work. That is to say, the fear of contracting COVID-19 would not qualify as a dangerous condition where a worker could legally refuse to work. However, if a worker contracts COVID-19 and has recently been present at the work site, this could constitute a dangerous condition where a worker might refuse to work.
The worker’s right to refuse comes with the duty to promptly report the refusal to the employer or supervisor with reasons. In response, the employer must immediately remedy or inspect the dangerous condition. The employer cannot take any discriminatory action (e.g., warning letters, suspensions, or terminations) against a worker for refusing to work.
When the employer inspects the dangerous condition, it must do so—provided no further risk is created—in the presence of the worker and the JHSC or HSR, if there is one at the work site. Upon completion of the inspection the employer must prepare a written report and share it with the refusing employee and the JHSC or HSR. This report must exclude personal information of the refusing worker.
The employer has certain options in the face of a refusal to work in dangerous conditions:
- Remedy the dangerous condition;
- Reassign the refusing worker with pay;
- Assign another worker to do the work; or
- A combination of these actions.
Reassignment of the refusing worker is not considered a discriminatory action. However, if the worker is not reassigned and continues to refuse, the worker is still entitled to the wages he or she would have earned had he or she continued to work.
Where the parties cannot come to agreement, the worker may file a work refusal complaint with OHS, which will prompt an investigation by OHS.
Where the employer assigns another worker to do the refused work, the employer must notify that worker in writing of the first worker’s refusal, the reasons for the refusal, the reasons why the employer does not consider it to be a dangerous condition, and the worker’s right to refuse dangerous work.
Employers are prohibited from discriminating against a worker who has refused dangerous work. If a worker has reasonable cause to believe he or she has been discriminated against as a result of the work refusal, the worker can file a discriminatory action complaint (“DAC”) with an OHS Officer.
The OHS Act empowers an OHS Officer to investigate a DAC from a worker, and if satisfied, may order the employer to:
- Cease the discriminatory action;
- Reinstate the worker to his former employment with the same terms and conditions;
- Pay the worker the wages and benefits he or she would have earned if the worker had not been subjected to the discriminatory action;
- Remove any reprimand or other reference to the matter from the employment records; and
- Take any other measures to prevent recurrence.
Where a refusing worker received some discriminatory action, section 36(5) of the OHS Act puts the onus on the employer to prove that the discriminatory action happened for a reason other than the right to refuse unsafe work.
On top of the powers granted under section 36, OHS officers may exercise any other powers they have under the OHS Act, which include:
- conducting work site inspections; and/or
- issuing preventive orders including stop work orders, issuing tickets, and issuing administrative penalties.
Current COVID-19 Recommendations from OHS Alberta
Alberta OHS has put out an informational bulleting in the wake of the COVID-19 outbreak. In essence, Alberta OHS recommends the following:
- Employers should implement a hazard control system starting with elimination of the potential hazard where it is possible or reasonable;
- If the hazard cannot be eliminated, then the employer must control the hazard through the use of a hierarchy of controls, which must be applied in this order:
- Engineering controls (e.g., ventilation systems or physical barriers) to control the hazard at the source. If engineering controls are not reasonable or practicable to control the hazard, then;
- Administrative controls (e.g., procedures for hand hygiene, cleaning policies, social distancing, and alternate work arrangements) to change the way that people work. If administrative controls are not reasonable or practicable to control the hazard, then;
- Use of standard-approved PPE (e.g., gloves and respirators) to control the hazard at the worker; or
- Any combination of the foregoing controls, so long as they serve to properly control the hazard.
- Employers should do a hazard assessment to determine what controls to apply. As part of the assessment, employers should consider amongst other things:
- the amount of human interaction;
- the job tasks that increase potential exposure; and
- the length of potential exposure.
- Employers should review and revise their hazard assessments as needed.
- Employers should also consider collateral hazards such as stress and fatigue.
- Special consideration should be given for workers in the health care setting.
- The best way for an employer to avoid a refusal to work is to have a proper contingency plan and clear communication with workers to explain the plan to preempt such a refusal.
- Employers should preemptively assess the risk of the COVID-19 hazard at the work site and have a plan in place to eliminate the risk, or if that is not possible, minimize it through engineering or administrative controls or use of PPE.
- If a worker contracts COVID-19, employers should immediately:
- lock down of work site areas where the infected worker may have been;
- advise AHS;
- perform a hazard assessment of the work site;
- determine who the worker might have been in contact with and advise those workers to self-isolate; and
- take steps, such as hiring a commercial cleaning company, to disinfect the affected areas.
- Once these steps are taken, clear communication should be provided to all workers of the steps taken, advising workers once it is safe to return to the work site.
- A common practical means of reducing the current risk includes allowing workers to work from home, whenever possible.
- Employers should also follow public health alerts and advisories and follow any government directions.
- If a worker refuses to work because the risk of COVID-19 at the work site, the employer needs to take worker refusals seriously and follow OHS guidelines and legislation.
Should you have any issues with OHS matters related to COVID-19, please contact us and we will be pleased to offer our expertise and assist.