Refusing Unsafe Work in the COVID Era (British Columbia)

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  • October 8, 2020

Refusing Unsafe Work in the COVID Era (British Columbia)

Employees have a right to refuse unsafe work, but can an employee refuse to work based on a risk of possible exposure to COVID-19? This article provides a general overview of the grounds for and process of refusing unsafe work in British Columbia, with specific considerations for work refusals made during the COVID-19 pandemic.

When can an employee refuse to work?

      A.     General Overview

In British Columbia, an employee has a right to refuse unsafe work when they have reasonable cause to believe that the work would create “an undue hazard to the health and safety of any person”.

A “hazard” is defined as a thing or condition that may expose a person to a risk of injury or occupational disease.[1] An “undue hazard” is a hazard which is unwarranted, inappropriate, excessive, or disproportionate.

The determination of whether an employee has reasonable cause to believe a situation would create an undue hazard is an objective test, based on what a reasonable person would believe taking into account relevant and available information and exercising good faith judgment with regard to the employee’s training and experience.

Where an employee has an underlying condition which would lead them to suffer an illness or sustain an injury in situations where others may not be affected in the same manner, the objective test of reasonable cause is applied in the context of the employee’s specific health condition(s). There must be a clear connection between the undue hazard and the employee’s health condition for a work refusal to be upheld in these circumstances.

    B.     Refusing Work due to COVID-19 Concerns

How does COVID-19 fit into the work refusal framework? WorkSafeBC has provided some guidance, noting that an undue hazard would exist where the employee’s job places them at an increased risk of exposure and adequate controls are not in place to protect them from that exposure.[2]

Factors that may influence the validity of a work refusal for reasons related to COVID-19 include:

  • Whether the workplace has one or more confirmed or presumptive cases of COVID-19;
  • Whether an employee has been in close contact with a person with a confirmed case of COVID-19;
  • Whether the employee refusing the work has an underlying health condition which renders them particularly vulnerable;
  • Whether there is a higher risk of exposure from customers, clients, contractors, etc. due to the nature of the workplace;
  • The current state of the pandemic in a particular region; and
  • The measures implemented by the employer to prevent transmission of COVID-19.

An employee will likely not be able to refuse to work simply because of a general concern about possible exposure to COVID-19 at work, or while travelling to/from the workplace. However, it is important to note that while a refusal is unlikely to be upheld in such circumstances, WorkSafeBC has advised that it may still investigate a work refusal in circumstances where an employee is not attending and refuses to attend the workplace due to concerns about COVID-19. This is in stark contrast with other jurisdictions such as Ontario where physical presence is required before the work refusal process can be initiated.[3]

Establishing valid grounds to refuse work due to COVID-19 will be difficult in most circumstances, provided the employer has complied with guidance from local health authorities. While there is no official data on the acceptance rate of work refusals in BC since the outset of the pandemic, WorkSafeBC has advised that it has not been recognizing as valid any work refusals unless there is clear evidence that the employer has blatantly disregarded the orders and guidelines established by BC’s provincial public health officer.

Data from labour authorities in jurisdictions other than BC shows that in the early months of the pandemic, the vast majority of work refusals on the basis of COVID-19 concerns were denied.[4]

How can an employee exercise their right to refuse unsafe work?

     A.    Reporting and Investigation

Regardless of whether an employee is refusing to work for COVID-19-related concerns, the process for exercising the right is the same.

First an employee must report the unsafe condition(s) to their supervisor/employer. Once an unsafe work condition has been reported, the employer has an obligation to investigate the matter immediately. If the employer finds that the employee’s report of an unsafe condition is valid, they must ensure the unsafe condition is addressed as soon as possible. If, in the employer’s opinion, the report of the unsafe condition is not valid, the employer must inform the reporting employee of that decision.

If the employer finds that the refusal is not valid but the employee continues to refuse work due to their perceived safety concerns, the employer must conduct a second investigation into the matter. This secondary investigation must be undertaken in the presence of the employee and a worker representative of the joint health and safety committee or a worker chosen by the worker’s trade union (as applicable). If there is no safety committee or trade union at the workplace, the employee can choose another employee to be part of the investigation.

If the employee does not feel comfortable participating in the investigation in-person, the employee should be permitted to participate by other means such as by video, phone, or e-mail.

If the matter is not resolved after the employer’s investigation(s), both the employee and employer must contact WorkSafeBC. WorkSafeBC will assign a Prevention Officer to the case who will then conduct a further investigation and determine an appropriate solution.

     B.    During/Following the Investigation

While the investigation process is ongoing, the employer may reassign the employee to alternate work with no loss of pay.  Employers are prevented from disciplining or dismissing employees for exercising their right to refuse unsafe work, provided the employee exercised their right in good faith and in a reasonable manner.

If an employee continues to refuse to work after all the above steps have been exhausted, the employer may have justification to discipline or terminate the employee if there is no reasonable basis for the continued refusal. However, employers may wish to consider any potential risks to their reputation from taking such actions in circumstances where the refusal is related to COVID-19.

Preventing Work Refusals in the COVID-19 Era

Employers should follow the guidance of local health authorities and ensure that they have appropriate measures in place to limit the transmission of COVID-19 in the workplace, taking into consideration the nature of the business and any potential increased risks. Such measures might include accommodating remote work arrangements, implementing social distancing guidelines, promoting good hygiene practices, and providing employees with personal protective equipment (PPE) where appropriate.

[1] Occupational Health and Safety Regulation, B.C. Reg. 82/2020, s. 1.1.

[2] WorkSafeBC, online: https://www.worksafebc.com/en/about-us/covid-19-updates/health-and-safety/what-workers-should-do

[3] In comparison, the Ontario Ministry of Labour has stated that in order to initiate a formal work refusal, the danger must be based on current conditions that the employee is exposed to (i.e. the employee must be actually exposed to the dangerous condition(s) by being physically present at the workplace). If the employee is not physically at work, the criteria for a work refusal will not be met, and the employee’s report will be treated by the Ministry as a complaint rather than triggering the formal refusal process.

[4] CBC News, “More Canadians are refusing work due to COVID-19 – but it’s tough to get authorities to agree” (June 22, 2020) online: https://www.cbc.ca/news/canada/work-refusal-safety-covid-1.5617787; CTV News, “Majority of Canadians’ work refusal claims being denied amid COVID-19” (June 25, 2020) online: https://www.ctvnews.ca/health/coronavirus/majority-of-canadians-work-refusal-claims-being-denied-amid-covid-19-1.4999369