The law in Ontario protects most workers from being required to perform work that puts their health and safety at risk. In the midst of the COVID-19 pandemic, it is more important than ever to understand the right way to refuse unsafe work.
Under Ontario’s Occupational Health and Safety Act (OHSA) and the federal Canada Labour Code (CLC), most workers are allowed to refuse work that is likely to endanger themselves (or in some cases other workers). These statutes also prevent employers from disciplining or penalizing most workers who refuse unsafe work, provided the proper procedure is followed.
Most of the time, employees who refuse to follow their employer’s directives risk being disciplined or terminated. The right to refuse unsafe work is an exception to this rule. But there are procedures that govern when and how workers can refuse unsafe work, so it is important to know what to do. Unless the proper procedures are followed, a worker who refuses their employer’s direction to attend or perform work risks being disciplined or even fired.
Both the OHSA and the CLC provide similar processes for refusing unsafe work. The OHSA applies to employees of provincially regulated employers, which is the majority of employers in Ontario. The CLC applies to employees of federally regulated employers. For information on what kinds of jobs are federally regulated, click here.
If a worker is asked to perform work that they believe is unsafe, they should stop and follow the proper process to ensure that they are protected by the law.
The work refusal process
When a worker has reason to believe that their health or safety will be endangered on the job, they should follow the following steps:
- Immediately notify their supervisor or employer of their concern and their reasons for refusing to work.
- Workers in a unionized workplace should also notify their union representative.
- The supervisor or employer will investigate in the presence of the refusing worker and another appropriate representative.
- The refusing worker should remain nearby in a safe place.
- Following the first stage investigation, the employer will decide whether it thinks the work is unsafe and should notify the refusing worker (and the union, if applicable).
- For workers in sectors regulated by the CLC, if the problem is not resolved at this stage, the workplace health and safety committee is notified and undertakes its own investigation.
Following the First Stage, the worker may return to work. However, if the worker still has “reasonable grounds to believe” that the work is unsafe, the work refusal proceeds to the Second Stage.
At the Second Stage, the Ministry of Labour, Training and Skills Development takes over the investigation:
- The worker, the employer or a representative must notify a Ministry of Labour, Training and Skills Development inspector of the work refusal. You can contact the Ministry here.
- The Ministry will send an Inspector to the workplace (or may conduct an investigation by phone) to investigate the refusal in consultation with the worker and the employer (or their representative).
- If there is a joint health and safety committee, a committee member will also be consulted as part of the Inspector’s investigation
- The Inspector will determine whether work in question is likely to endanger health and safety.
- While the Inspector is investigating, the refusing worker should stay nearby in a safe place, unless alternate work is available for them to do.
- If the Inspector finds the work to be unsafe, they may issue Orders that require the employer to address the underlying concerns.
- If a worker or union disagrees with the Inspector’s decision, they can appeal to the Ontario Labour Relations Board.
Workers with restricted work refusal rights
Under the OHSA, several groups of workers, including police and correctional services worker, firefighters, and certain health care workers, have restricted rights to refuse unsafe work. These workers can only refuse to perform work they believe is unsafe if:
- the work in question is not “inherent” in their work or a “normal condition” of their employment; AND
- the work refusal would not directly endanger another person’s health or safety.
This means that a nurse who deals with sick patients every day may not be able to refuse to care for patients displaying symptoms of the COVID-19 disease, assuming the appropriate safety protocols are being followed. However, it may be different if the nurse is asked to care for COVID-19 patients without being provided with the necessary personal protective equipment. In that case, the nurse is not being asked to perform work that is an “inherent” or a “normal condition” of their employment. The nurse may, therefore, have a right to refuse the work unless doing so would directly endanger another person’s health and safety.
Whether something is “inherent” to a particular workplace, and what it means to directly endanger another person’s health and safety, are highly contextual questions. This means that the answers will likely vary from workplace to workplace, and from case to case. We also know that the current situation is evolving quickly, and we are learning more about the virus and the risks every day.