An employer’s obligation to keep employees safe is currently being tested at schools across the GTA. As numbers overall increase in the province, schools have been a significant source of new cases. As of December 4th, there were nearly 800 active cases in schools across Ontario. The vast majority of these cases are among students, but there have been over 250 cases involving teachers and staff within the last two weeks. This past week, news of school outbreaks made headlines when three teachers walked off the job at a school in East York after 26 cases were discovered among students and staff.
Teachers Walk Out After Non-symptomatic Cases Detected
At the end of November, the provincial government announced plans to provide additional COVID-19 resources to areas considered to be “high risk” for infections. One of those resources was to implement volunteer testing for people who were not displaying any symptoms of infection. Generally, to qualify for a COVID-19 test, a person must either have symptoms associated with the virus or have come into contact with someone who tested positive.
The first school to adopt the volunteer testing program, Thorncliffe Park Public School, saw over two dozen people test positive who had displayed no symptoms typically associated with COVID-19. This prompted three teachers to walk off the job, citing safety concerns. Later that day, the Board made the decision to close the school temporarily, to allow investigators to fully assess the situation and put contact tracing protocols into place.
The school is to remain closed until at least December 10th, allowing additional testing of staff and students, as well as a deep cleaning of the premises. Jamie Thorn, the vice-president of the Elementary Teachers of Toronto said the Board had made the right decision:
Our position has always been that the school board has the ability to unilaterally make these kinds of determinations. The school board’s position, obviously, is that they take their guidance from Toronto Public Health. But notwithstanding that, they still have the ability, under direction from the Ministry of Education, to make these kinds of decisions. We would have hoped that that would have happened several days ago, but nonetheless, better late than never.
When is a Refusal to Work Considered a Protected Leave?
The teachers who chose to walk off the job ahead of the announced closure have prompted questions about when a work refusal is permitted, as a form of job-protected leave. If a person works in an environment where others test positive for COVID-19, is that sufficient reason to refuse to attend? The answer isn’t always clear under the law, particularly now, as businesses are continually adapting to an unprecedented situation.
The Employment Standards Act (ESA) provides protected leave for any employee who cannot attend work for the following reasons:
- they are under medical investigation, supervision or treatment for COVID-19
- they are acting pursuant to an order under the Health Protection and Promotion Act
- they are in isolation or quarantine or acting pursuant to public health information or direction
- they are directed by the employer not to work because the employee could spread COVID-19 in the workplace
- they are providing care or support to a specified individual for a reason related to COVID-19 such as a school or childcare closure or where an employee does not send their child to school or to childcare because of a concern that the child will come into contact with COVID-19
- they are prevented from returning to Ontario because of travel restrictions.
However, these reasons do not include a personal fear of contracting the virus due to proximity to others who tested positive, without direction from a public health authority.
If an employee feels they have a reasonable fear that their workplace is unsafe, they should immediately report their concerns to a supervisor. Under the Occupational Health and Safety Act, the employer is required to investigate any claim of unsafe circumstances. If the employer deems the environment safe, and the employee still feels they have a legitimate concern, they can escalate their complaint to the Ministry of Labour. Once a complaint has been made, the Ministry will investigate the situation through consultation with both the employee and employer. If the Ministry also deems the environment safe, the employee may have little in the way of recourse in the absence of a public health directive.
The threat of COVID-19 is ongoing, and employers have a duty to look out for the safety and wellbeing of their staff. If you are an employee concerned about safety in the workplace, contact the offices of Guelph employment lawyer Peter McSherry. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.