Heck No, We Won’t Go - Employer Return-to-Work Considerations in the Post COVID-19 Era (Part 3 of 4)
Part 3: Work Refusals
As many businesses move to reopen and/or increase the services they are able to provide we see more Ontarians being called back to work. In many cases employees have been looking forward to the day they can return to work so they can start earning income again and return to some sense of normalcy. Yet, there are some who do not want to return to work or are not ready to return to work. Directives from government and public health authorities which continue to prohibit large gatherings (in Ontario, more than 10 people) are, generally speaking, not sufficient to justify a refusal to attend for work if an employee is recalled from layoff or asked to return from a COVID-related leave of absence. Further, fear of contracting the COVID-19 virus, while something being experienced by many people, will not, in most cases, constitute a just reason for remaining away from work and receiving EI or CERB benefits.
In this third installment of our Return to Work blog series we examine what employers should and can do when an employee refuses to return to the workplace.
Is COVID-19 a hazard?
Most employees in Ontario can refuse to return to work where they have an honestly held belief that the workplace or work, they are asked to perform is unsafe or presents a danger to their, or another’s, health and safety. Under the Occupational Health and Safety Act, employers must respond to a work refusal, including investigating the employee’s concerns and adopting practices to eliminate or reduce the danger as required. Each work refusal should be reviewed and considered on an individual basis unless a work refusal is presented by the employees on a collective basis.
It is important to note that the existence of the COVID-19 virus in the world, in the province, or even a confirmed case in the workplace, does not in and of itself make a workplace unsafe. Just as accidents could happen in the pre-COVID world, there is no guarantee that any workplace is free from all risks of exposure or contact with the COVID-19 virus. So long as the employer has taken reasonable and appropriate steps and measures to prepare the workplace and to ensure the health and safety of its employees it is likely that a work refusal will not be supported.
As an employer, don’t be afraid to call the Ministry of Labour. If you have done what needs to be done to make the workplace safe and followed all guidelines from government and/or public health authorities, a call to the Ministry of Labour will likely result in a report that confirms that the employer has taken all reasonable steps to ensure a healthy and safe workplace and a requirement that the employee return to work as directed [1], If that doesn’t happen, it is likely that the Ministry may suggest that there are some additional steps you can take to address the concern and after those are completed by the employer the Ministry will confirm that all necessary steps have been taken.
That being said, when faced with any work refusal, the employer should look at the reason for the refusal. What is safe for one employee may, in fact, be unsafe for another and even absent any issue regarding safety or danger, there may still be justifiable reasons for a worker to refuse to attend for work and/or seek accommodation from the employer.
What if the work refusal is related to family or childcare concerns?
On June 10, 2020 the Ontario government announced that daycare and childcare centres across the province are able to reopen as at 12:01 a.m. on Friday, June 12th, albeit under strict guidelines and directives regarding number of children able to attend, prohibitions on visitors and mandatory screening of families. Even with this welcome announcement, schools remain closed and day camps for school-aged children will, when allowed to open, likewise be subject to strict government and public health directives. As a result, there are many families whose children will continue to require care and supervision. Where the work refusal is related to an employee’s family or medical needs, the employer should review each individual case and provide accommodation where and as necessary.
Just as was the case pre-COVID, the employer has a duty to accommodate any human rights related needs or limitations to the point of undue hardship including, as appropriate, allowing the employee to continue to work from home or placing the employee on an unpaid leave of absence. The employer should review each request for accommodation on a case-by-case basis and work in cooperation with the employee to determine the support and resources available to the employee and the appropriate and reasonable form of accommodation.
What if the work refusal is related to health concerns or restrictions?
Where the work refusal is related to an employee’s health or medical needs, the employer should, again, review the individual employee’s request for accommodation on a case-by-case basis and provide accommodation where and as necessary. In the case of a work refusal based on illness or disability (including when an employee advises they are immuno-compromised or in a category of persons at high risk of exposure to the virus) employers should work not only with the employees, but also with their doctor to determine what, if any, functional limitations and restrictions require accommodation. The accommodation process is fact driven and each request for accommodation and the form of accommodation offered is to be determined based on the information available. For example, where an employee advises that they are unable to return to work because their asthma prevents them from wearing a mask it is reasonable and appropriate for the employer to request additional medical information from the employee’s doctor. In such case, the employer should be as specific with their inquiry as possible, confirming what they have been told by the employee and asking the doctor to confirm what, if any, functional limitations or restrictions the employee may have in regard to attending for work, wearing required PPE and/or performing their regular job duties and responsibilities. To assist the doctor in providing the requested information it’s also recommended you share with the doctor the employee’s job description and what steps you have taken to prevent the exposure to COVID-19 in your workplace.
Just as in the case of childcare needs, the employer has a duty to accommodate any COVID-19 restrictions related to an employee’s illness or disability to the point of undue hardship including, as appropriate, the employee taking an Infectious Disease Emergency leave of absence or, where possible, working from home.
Addressing COVID-related anxiety
Since mid-March Canadians have been inundated with various forms of news, alerts and publications about the COVID-19 virus, its impact, the manner in which it is contracted and how to protect yourself. Recommendations about what steps individuals should take to protect themselves have changed as research and understanding of the virus itself has developed. Generally speaking, however, the precautions recommended when the virus first appeared in Ontario in January remain at this time: (1) practice regular hygiene and hand-washing; (2) maintain a physical distance of 2 metres (6 feet) from others; and (3) clean surfaces and areas of contact regularly. Relatively newer recommendations include wearing face masks and gloves when in public. In some cases, face masks are required for individuals to attend businesses including grocery stores, and when using public transportation. Still, despite these measures and the daily updates and press conferences by public health authorities, there are individuals who have a generalized fear of re-entering public spaces. Mental health issues are not to be taken for granted. Employers should familiarize themselves with the various supports and resources that are available including EAP and those offered through the Ministry of Health.
That said, not all mental health issues rise to the level of a disability. So long as the employer is following the applicable government and public health guidelines in their workplace, and communicating these to the employee, a general fear of exposure to COVID-19 will likely not be sufficient to support the employee’s ongoing absence form the workplace.
What if the employee wishes to continue working remotely?
If the refusal to return to work is really just the employee expressing their preference to continue working from home, the employer is under no obligation to agree. Again, review each request or concern on an individual basis and respond accordingly. Where accommodation is called for, the form of accommodation offered is not what the employee believes to be reasonable, but what is reasonable in the circumstances. Remote work opportunities do not have to be offered in every case and there may be reasonable accommodation available in the physical workplace itself.
Key Things to Remember
It is important to keep in mind that employers cannot discipline an employee for refusing unsafe work. Once the investigation of their unsafe work refusal is completed however, and it is determined that there is either no danger or that reasonable and necessary steps have been taken to address the concern, an employee can be disciplined for refusing to return to work that is deemed safe.
Likewise, an employee who insists upon remaining away from the workplace due to a need for accommodation can only refuse to return to the workplace where the working conditions in the workplace could or do pose a risk to their health despite the modifications/ accommodations made by the employer. Otherwise, discipline can be imparted for their failure to return. However, will want to carefully assess whether their requirement that the employee work in the workplace is reasonable and whether (given the unprecedented times we find ourselves in) leniency instead of discipline should be considered.
Additionally, a refusal to return to work may constitute an abandonment of employment by the employee and result in the employment relationship ending with no liability on the part of the employer to termination pay or entitlements. Word to the wise, though, review any such action with your legal advisors before proceeding.
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Stay tuned for the fourth (and final) entry in our Return to Work blog series which will address policies and protocols in the post-COVID-19 workplace.
[1] In Ontario, there were 265 work refusals related to COVID-19 reported to and inspected by the MOL. Only 1 of these complaints was upheld.
