As the vast majority of Ontario has entered Phase 2 of the province’s re-opening plan, many workers are wondering what their rights are with respect to maintaining health and safety at work. Under Ontario’s Occupational Health and Safety Act, an employer must take every precaution reasonable in the circumstances for the protection of workers. But what does that mean in practical terms with respect to the risks of contracting COVID-19? Here are some questions clients have been asking me, which help provide some insight into these complicated issues.
The government has put out certain guidelines about precautions that employers should take in the workplace. Are those rules binding?
In short, the answer is no. All levels of government are providing guidelines, tips or best practices. It is unclear how or even whether the different levels of government will enforce these guidelines. However, if an employer does not take appropriate precautions for the protection of its workers, these guidelines could be relied on in any Occupational Health and Safety Act complaint or work refusal.
The Ontario sector-specific guidelines state that the health and safety of workers is a “top concern” amid the global COVID-19 pandemic. They also mandate that all parties must place an increased focus on health and safety in order to keep job sites open. While the guideline itself is not a legislative regulation, we hope that this increased scrutiny on health and safety will lead to increased enforcement of rules and regulations under the Occupational Health and Safety Act.
You can find Ontario’s sector-specific guidelines and tip sheets here.
All three levels of government are providing advice – which one is my workplace supposed to follow?
The amount of advice about how to stay safe that is coming at us these days can be intimidating. We suggest that workers look first to the level of government that regulates their workplace. Most businesses in Ontario are regulated by the provincial government, and are therefore subject to Ontario’s Occupational Health and Safety Act. Those workplaces should look first to Ontario rules and guidelines, and second to the guidelines issued by the municipalities or regions in which they operate.
If you work for a federally regulated business, you should look to the federal government’s guidelines instead of those set out by the Ontario government.
Each workplace should conduct an organizational risk assessment prior to re-opening for business, and evaluate the risks pursuant to the guidelines most appropriate for the organization. We would also note that any Ontario and municipal guidelines around public transit and travel will be relevant for most workers.
Will I be required to wear a mask to work?
It is entirely possible depending on what kind of work you perform that you may be required by your employer to wear a mask during your entire shift. Current guidance suggests wearing non-medical masks reduces the risk of spreading COVID-19. The City of Toronto has approved a By-law that will require anyone entering an indoor public space to wear a mask or face-covering as of July 7, 2020. The By-law provides for certain exceptions to what is a public space and excludes places such as schools, childcare facilities and hospitals.
Should there be a medical reason that a worker cannot wear a mask, that situation can and should be dealt with as an individual accommodation request and alternative options can be explored by the parties. Even though non-medical masks are advisable, an employer’s duty to accommodate up to the point of undue hardship still applies. The Toronto By-law anticipates this issue and contains an exception for medical accommodation. If you are a member of a union, contact your union representative to make an accommodation request. If you are not unionized, then make the request directly to your employer’s Occupational Health or Human Resources Department.
If you work in relative isolation, it is possible that your employer will only require you to wear a mask in situations where physical distancing is not possible. For example, in an office building where employees can close their office doors you may only be required to wear a mask in common areas such as elevators, washrooms and break rooms. This is less likely if employees work in customer or client-facing positions. Any policy requiring employees to wear a mask should provide reasonable accommodation and space for employees to be able to remove the mask during break periods. If you are worried that your employer’s policy around masks is not reasonable, you should contact your union representative or seek legal advice.
What options do I have if my employer is not following appropriate safety guidelines?
If you are asked to return to work, and you do not feel that your employer is taking all precautions reasonable in the circumstances to keep you and your co-workers safe, you have the right to make a complaint to the Ministry of Labour under the Occupational Health and Safety Act. An inspector will be assigned to investigate the complaint. If you are unionized, you may also be able to file a grievance and should seek advice from your union representative. Should you feel that the physical condition of the workplace is likely to endanger you, you also have the right to refuse unsafe work under the Act (and the Canada Labour Code for federally-regulated workers). A work refusal has a very specific process to be followed, which is set out in the Act and Code, and outlined by my colleague Kirsten Mercer here.