Q & A: 'How do I refuse unsafe work in the era of COVID-19?'

Since the COVID-19 pandemic began, CBC Kitchener-Waterloo has received many questions about the coronavirus and the workplace. 

CBC KW spoke to Maxwell Bauer, an employment lawyer at Morrison Reist Krauss LLP, for an expert opinion about what constitutes unsafe work amid COVID-19, and what obligations employers and employees have when it comes to keeping their workplace safe. 

This interview has been edited for length and clarity. This interview is for the purpose of providing legal information, not legal advice. For legal advice please contact a lawyer.

CBC Kitchener-Waterloo: What obligations do employers have to their workers here?

Maxwell Bauer: Under the Occupational Health and Safety Act, workers can refuse unsafe work. Generally speaking, an employer's obligation is to use their best efforts to provide a safe and healthy workplace for all of their employees.

Employers can ask employees to report unsafe work conditions, and ask them to self-report ailments related to COVID-19, [such as] exposure to COVID, a diagnosis of COVID. I think at this time all of those things should be above board, and if that were to happen the employer has to take steps to address that situation.

Employers are trying to get ahead of the curve. They're obviously following the government's instructions and encouraging things like proper hygiene practices and providing people with access to soap and water and hand sanitizer. 

Once a diagnosis of COVID-19 occurs in the workplace or potential exposure then what that might trigger on the employer's behalf is an obligation to let people know about that risk.

Employers are going to probably want to contact their counsel in order to determine the best way to do that.

CBC KW: From an employee's perspective, what options do they have if they feel their workplace is unsafe?

Maxwell Bauer: If an employee has a great suggestion for a way to make the workplace healthier and safer then obviously I think they should go ahead and tell their employer that.

Employees do have the right to refuse work if that refusal is reasonable. It needs to be a specific, clear and present risk that is likely to endanger their health or that of another worker.

The general worry and anxiety and fear about COVID-19 isn't going to do it, but if there's a specific instance that the employee can point to and say, "This particular practice is unsafe, because you're forcing me to work beside somebody that has returned from abroad and they're not within that 14-day period," I think that would be a reasonable time for that employee to refuse that work.

CBC Kitchener-Waterloo: Can you walk us through how an employee would go about escalating that kind of concern?

Maxwell Bauer: I think the first thing they should do is make their manager or health and safety representatives aware of it. Then they're going to look into the situation and determine whether or not that is an actual risk that needs to be addressed.

Hopefully, at that point, the parties can come to some sort of solution to make the workplace a safer, healthier, place to be and to reduce the potential risk that was identified.

If that doesn't work the employee can escalate the matter above the manager, and then if that doesn't work then they can contact the Ministry of Labour.

CBC Kitchener-Waterloo: How important is it for a worker to keep specific notes about the situation they're concerned about?

Maxwell Bauer: It's really important for a couple of reasons. One is, obviously, it's the evidence that you need to have later to show if there's some sort of claim or issue that arises from it.

Under the Occupational Health and Safety Act, the duty to keep the workplace safe and free and healthy is not only the employer's obligation, but employees also have obligations under that.

Using a totally different example, if an employee sees a machine without a guard on it, they have a legal duty to report that to their manager and the health and safety rep. It's not just the employer's obligation, it's all the parties involved in the workplace that have to keep the place safe.

CBC KW: An online interview is no substitute for specific legal advice. If someone is reading this and needs to speak to a lawyer – and may be low on funds – where can they go?

Maxwell Bauer: If it's a human rights issue, there's the Human Rights Legal Support Centre. If they think this has something to do with a disability, let's say they got a COVID-19 infection and they think they're being discriminated against because of that and they're low on funds, they could try that.

Or if it's a family status issue, if they're having to stay home and take care of their kids because they're off school, potentially that's discrimination under the Ontario Human Rights Code. They could contact the Human Rights Legal Support Centre, who may be able to provide pro-bono support.

If they contact the Law Society of Ontario, there are lawyers that will do free consultations, and the Law Society could direct them to a lawyer that's willing to do that.