Written on behalf of Peter McSherry
As the prospect of a return to work is no longer an idle thought, many people are wondering about safety issues in the workplace. Clearly this raises many issues about exposure to the virus once the doors to the place of employment are opened again.
Management does have a duty imposed upon it to take every reasonable step to ensure the health and safety of its workforce. This will also include the need to offer protections for its workers from infectious diseases, such as the COVID-19 virus.
Such steps will include:
- To provide information and instructions to all staff on safety procedures;
- To be sure that supervisors are aware of the steps required to ensure workplace safety;
- To develop workplace health and safety procedures which are particular to the specific business;
- To monitor the workplace and be sure that the policies are followed;
- To ensure proper protective equipment is provided as needed and adequate training is provided;
- Where possible, workers should be permitted to perform their duties remotely. This discussion should take place with the business’s Workplace Health & Safety Committee;
What Should be Done When an Employee Suspects They May be Infected?
A. Employer Action
If a co-worker shows signs of illness, such as respiratory distress or loss of smell, this person should immediately be advised to stay home and seek medical advice. Steps should be taken to ensure the safety of other workers, especially those at a higher risk of exposure. If co-workers have been in close contact with the person suspected of carrying the virus, the employer will need to determine if these other workers should be asked to self-quarantine. The employer may need to temporarily close down a workplace area that may have become infected. All affected workplace equipment may also be needed to be disinfected.
B. Employee Action
Should you suspect a co-worker may be showing symptoms of the virus, you should voice your concerns to a supervisor, the Joint Health and Safety Committee and/or the health and safety representative of your company.
You should always be careful to practice the recommended hygiene and distancing protocols as well.
Refusing to Work
As discussed in a prior post, there is a mechanism in place for refusing work that you may consider to be unsafe. Suppose for example, you believe that a co-worker is infected or even that the co-worker is living in a context in which another family member or resident has taken ill. The Occupational Health & Safety Act does allow for a procedure to be followed in this context, where “the physical condition of the workplace or workstation is likely to endanger himself or herself”.
The first step is to report the issue to your immediate supervisor and explain in detail why you believe that you have good reason to refuse to work. The employer must then investigate the allegation as soon as possible. The investigation must include the worker who complained, as well as one of the joint health and safety committee worker representatives, or another worker chosen by the workers who has safety knowledge and experience or training. The complaining worker must remain close by their workstation. If the complaint is then mutually resolved, the worker will return to active duties.
If the worker is unhappy with the response to the complaint, they may still refuse to work. If so, the employer must advise the Ministry. An inspector will be appointed and will conduct an investigation. The same parties will attend plus the employer. The complaining employee must again remain close to their workstation and also be available to the inspector. The employer may assign reasonable alternate work in this period.
The issue facing the inspector is whether the issue is likely to cause danger to the employee who made the complaint or any other person. The decision must be in writing. If the view of the inspector is that there is no such present danger, the employee must return to work. If a danger is found, the inspector will generally order the employer to remedy the problem to the inspector’s satisfaction.
Qualifiers to the Above
In certain jobs that generally involve high-risk, such as certain health care workplaces, first responders and correctional service workers, there is a limited right to refuse work.
The theory is that a certain degree of hazard is expected to be part of the normal work duties and for that reason, different rules apply. Similarly, a refusal to work in many of these occupations may cause a more serious danger to a co-worker or other person.
For these reasons, work refusal is not allowed. This does not, however, remove the obligation of the employer to provide a safe workplace.
Retaliatory Action Prohibited
Management is clearly denied the right to take any form of adverse action due to the employee’s complaint. An employee cannot be disciplined or threatened with any retaliation if they raise a complaint, or question safety protocols.
For employers covered by Workers’ Compensation, once an employee has shown an illness which may be due to workplace exposure, or once a claim by an employee has been made for workers’ compensation benefits due to this, the employer must notify the Ministry of Labour, Training and Skills Development within 4 days. The employer must also notify the joint health and safety committee, the health and safety representative and/or the trade union, where appropriate.
If you are facing concerns about the safety of your workplace, come in and discuss these issues to be sure that you follow the legal path set out by the province. Laws are frequently changing on this subject, so be sure that you are on the right legal footing before you act and risk your employment. This is the precise moment to have access to up-to-date legal advice. We will continue to monitor and update the all news as it develops in this space.
If you have questions or concerns about returning to work and how this may impact your safety, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.