Can I refuse to work due to COVID-19?
Yes. If you reasonably believe that your health and safety are in danger, and that the work you are being asked to do is unsafe based on COVID-19, you have the right to refuse as long as:
1. The dangers or hazards which you believe make the work unsafe are specifically related to COVID-19 and not normal conditions of your employment.
2. Refusing to do this unsafe work will not directly endanger the life, health, or safety of another person
What is Unsafe Work?
The Canada Labour Code (122 (1)) defines a danger as:
Any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.
This can include exposure to materials or situations which may not cause immediate harm, but which could result in illness or injury at a later date.
How should Unsafe Work be addressed by the employer?
The aim of Part II of the Canada Labour Code is to prevent workplace incidents:
Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees. (122.2)
What will be considered when work refusals (based on COVID-19) are evaluated?
The success of your right to refuse work based on COVID-19 will depend on a number of factors, including the following considerations:
- the state of the COVID-19 situation in your particular city, region, province/territory and workplace at the time;
- your age and health;
- the type of workplace where you perform your functions;
- the specific field of work and normal duties or tasks;
- the number of workers at the workplace and whether or not social distancing is possible;
- the measures adopted by the employer to prevent the transmission of COVID-19, including workplace hygiene and personal protective equipment (PPE), where applicable;
- whether people in the workplace (staff or clients/inmates) have been diagnosed with COVID-19
- does the work you are refusing fall under one of the exceptions to the right to refuse
What are the steps to take when refusing to do unsafe work?
A work refusal is not something to be undertaken lightly.If a refusal is found to be frivolous, it can result in financial penalties for anyone who made or participated in the refusal.
If you reasonably believe that your health and safety are in danger, and that you cannot continue to do your work, follow these steps.
1. Report the hazard to your supervisor. (Advise your Local Union Rep at the same time so they can assist you, if necessary.)
2. Make it clear that you are refusing to perform unsafe work under s. 128 of the Canada Labour Code
3. Cooperate with the investigation – you must attend and participate, answer questions, etc. Take a Union Rep with you to ensure you are protected.
If the supervisor decides there is no danger or refuses to investigate, you can:
1. Continue to refuse to work and escalate the complaint to the Employer.
2. Inform your Union Rep, and your Health & Safety Committee member, if possible.
Employers have a duty to investigate. You must participate and cooperate. An Employer can delegate an investigation to a joint Health & Safety Committee, or they can nominate an individual to participate. The Union also gets to name someone to participate. You can provide more information to the Committee if needed.
If the Employer or Committee finds there is no danger (they have to give you a decision in writing), you have to:
- advise clearly that you disagree, and the Employer then has to involve the Minister of Labour, who will investigate and give a report, including directions.
If the Minister’s report and directions find there is no danger, you need to:
- have the Union contact National Headquarters (NHQ) right away so that we can assist with an appeal.This must be done within 30 days of the decision, but does not halt the directive unless the union can convince the Board to halt the directive. That means you could have to return to work in the meantime until the process is completed.
The appeal will provide a final decision on the determination of unsafe work and your refusal.
How will a colleague refusing to work affect me?
If a colleague is refusing to work, and you feel similarly, you can join them and make the same refusal, but, as always, you MUST have a reasonable basis for doing so.
If a colleague (on a different shift or different work location) refuses work and there is a finding of danger, your Employer must advise all other employees who are affected by the same unsafe circumstances.
If you require any further information on refusals to work, please contact your USJE Local Executive or your USJE Regional Vice President.