Provincial labour laws on refusing dangerous work are being tested as businesses reopen during pandemic
Security guards and a heath-care worker wait for patients at a COVID-19 testing centre in Ontario. (Frank Gunn/The Canadian Press)
As more workplaces open up, Canadians are faced with the challenge of going back to work after being told for months that can be dangerous.
Data on work refusals reported to provincial labour authorities shows there’s been a spike in the number of people who have formally refused to work citing dangerous conditions. But virtually none of those work refusals is being upheld, which may illustrate just how unprepared existing labour laws are for dealing with COVID-19.
All provinces have laws allowing people to refuse dangerous work. But a general fear of contracting COVID-19 is not enough to justify a work refusal, and neither are the risks associated with travelling to-and-from work, illustrating the challenges Canadians face as they balance exposure to the virus with getting back to the office or factory floor.
As some Canadians grapple with whether it’s safe to return to their jobs, provinces are going ahead with reopening plans that will see more Canadians getting back to their workplaces.
Stage two of Ontario’s reopening includes personal care services like hair salons and day spas, along with shopping malls and outdoor restaurant patios. Quebec is reopening salons, restaurants, gyms, arenas and indoor pools in parts of the province.
As more businesses start calling their employees back to work, provincial labour laws are about to get tested as authorities try to balance the economy with keeping workers safe from the pandemic.
Workplace concerns
CBC asked the provinces for data on work refusals related to COVID-19 related to concerns such as inadequate physical distancing or lack of protective equipment.
Work refusals are reported to the labour ministry or a workplace safety commission, depending on the province, which sends an inspector to decide on the refusal.
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Ontario has seen the largest number of work refusals: 280 from January to June. Out of those, only one related to COVID-19 was found to meet the criteria of the Occupational Health and Safety Act, according to Ontario’s Ministry of Labour, Training and Skills Development.
The one case upheld in Ontario involved a worker at Berry Global, a plastics packaging plant in Scarborough. The work refusal happened after another employee came to the plant after possible exposure to COVID-19. The ministry issued an order for the plant “to take every reasonable precaution to protect workers.” The company did not have more details to add.
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There have been COVID-19-related work refusals in other provinces as well, although the overall numbers remain low.
In Quebec, there were 21 refusals related to COVID-19. Only one was upheld. It involved an immunocompromised employee in a workplace where they could not get reliable information on the health condition of their colleagues, according to Quebec’s workplace health and safety commission. The commission did not identify the workplace.
Work refusal process an important protection
Katherine Lippel, a legal expert at the University of Ottawa, said formally refusing to work due to safety concerns can kick-start important protections.
“What you need to know is that when somebody exercises the right to refuse dangerous work, even if the exercise is not upheld, there are protections by law that that person gets,” she said.
For instance, their employer has to try to work with them to address the possible danger and the worker can temporarily stop working and protect themselves. If the issue is not resolved between the employer and worker, then a provincial inspector steps in.
Lippel, who is the Canada Research Chair on Occupational Health and Safety Law, has a forthcoming paper reviewing some challenges facing workers during the pandemic. She argues that there are structural gaps in the protections available to workers as they return to work.
They include: the risks faced in getting to work (such as using mass transit), which is generally not the employer’s responsibility, and protections for people with underlying health conditions that make them more susceptible to COVID-19.
Unions frustrated with process
Labour unions have been keeping a close watch on these issues as their members worked through the lockdown. The United Food and Commercial Workers represents about 70,000 workers in Ontario, many in essential services like grocery stores. They also represent workers in other hard-hit sectors such as tourism.
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“We’ve been a little frustrated with some of the process here in Ontario, as most of the work refusals that have been done and have been processed through the ministry have not led to any orders or been upheld,” said Tim Deelstra, spokesperson for UFCW in Ontario.
“And so that process is a bit frustrating, because obviously workers who are on the frontlines of this situation are concerned about their health and welfare and they want to believe that they have options available to them if they are concerned.”
Deelstra said that their members have been involved in about eight work refusal applications in Ontario, in grocery retail and industrial meat processing.
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The Ontario labour ministry said that “large portions of the COVID-19 work refusals were initiated by workers who have limited rights to refuse work under the OHSA.” These are employees in sectors such as healthcare and corrections, where refusing to work “directly endanger(s) the life, health or safety of another person.”
The ministry says that even in those cases, inspectors can still investigate the complaint if a hazard is identified.
· CBC ·