Let’s take a closer look specifically at two scenarios arising for employers and employees that are continuing to work at their workplaces. Firstly, employees are not wanting to work because they feel that their employer is not keeping them safe. Secondly, employees are not wanting to work because they don’t feel comfortable in general about Covid-19.
What if Employees feel that their workplaces are not keeping them safe?
Under the Ontario Occupational Health and Safety Act (OHSA), an employer is responsible for ensuring the health and safety of their employees and for taking ‘every precaution reasonable’ to keep them protected. If employees do not feel safe and protected, then they won’t want to come to work. Employees have a right to refuse to work if they genuinely believe that conditions are unsafe for them and/or their coworkers. The OHSA has a work refusal procedure that must be followed by employers. If an employee has reason to be believe the workplace is “likely to endanger” the spread of Covid-19 for example, then the employer must investigate the concern and report back to the employee with the results. An employee who has a genuine concern regarding their safety should not fear or incur any disciplinary action. If the results of the safety investigation show that the employer is not taking ‘every reasonable precaution’ then the employee has the right to continue to refuse work until the issue has been resolved. Accordingly, where it is reasonable to do so, the OHSA may prevent an employee’s termination for failing to come into work because of Covid-19. Furthermore, it can be argued that employees were forced to leave to protect themselves and could quit (constructive dismissal) and collect EI as a result. Employers must be able to show that they are doing everything possible to keep employees safe.
General Concern about Covid-19
The answers become more unclear as employers are approached by concerned employees with no specific safety reason other than concern of Covid-19 in general. In other words, employees still want to stay home despite all of the safety precautions in place to protect them Theoretically, if an employee refuses to go to work in the absence of a genuine Covid-19 illness or quarantine, or any other job-protected reason outlined in the Canada Emergency Response Benefit (CERB), then could this be considered “willful neglect?” Possibly, especially if employers can show they are taking every precaution reasonable to keep their employees safe. What now? Communicate with your employee and try coming up with a solution collectively. As always, being understanding and sensitive to any concerns by employees (pandemic or no pandemic) is important to the employer-employee relationship. The goal is to work together and continue to work together during (and after) this pandemic has passed. That being said, the employer is not obligated to pay the employee. Consider other options such as a leave of absence. This could benefit both parties because the employee is still employed and able to return to work. When the employee refuses to come to work but is not sick or quarantined use code N (Leave of absence), as appropriate.
Conclusion
Pandemic or no pandemic, employees will feel more secure if they feel that their safety is being addressed and protecting them is the top priority. Ensure the employees that the company is taking ‘every precaution reasonable’ and communicate this out appropriately. Employers should exercise diligence and not unreasonably deny a right of an employee to refuse work in light of Covid-19. Employers are required to address employee’s safety concerns and properly investigate them and report back. As a part of helping to alleviate Covid-19 concerns, some employers are proactively going over and beyond with their communication measures, especially since we are interacting less and less. Best practices such as these are more important now more than ever.
