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Can you refuse work during a pandemic?

Last Updated Mar 25, 2020 at 8:44 am EDT

As of midnight Wednesday, non-essential businesses in Ontario will have to shut their doors for two weeks to help curb the spread of COVID-19. But a surprising number of industries will still be allowed to operate, including dry cleaners, take-out restaurants, cannabis shops, lawyers’ offices, and car dealerships.

While Public Health officials have harped on the need for people to social distance, some are worried those same warnings won’t be heeded by workplaces.

“Business have to use their judgement and common sense,” Premier Doug Ford told media at a press conference Tuesday when asked about ensuring workplaces are safe for staff.

“We can’t go around and inspect tens of thousands of businesses.”

There are no specific rules outlined for essential businesses that are allowed to operate, leaving some workers questioning if they’ll have the right to refuse if appropriate safety measures aren’t in place.

Ford says they do.

“If you don’t feel safe, walk off the site and call the Ministry of Labour.”

But one employment lawyer says it’s not that simple.

“There’s always been a right to refuse unsafe work in our occupational health and safety legislation,” Stuart Rudner told CityNews.

“But we’re obviously in unchartered territory, and it’s hard to say how we apply it now.“

Rudner said every case has to be judged on its own merit and factors, and the circumstances have to be specific to an employee and their workplace. A pandemic alone is not reason enough to miss work, but an employee can refuse if there is a legitimate threat to their safety, and the circumstances pass what he calls “the reasonable persons test” — would any reasonable person, in the same circumstance, consider their heath to be at risk?

He gave the example of someone being told they have to work next to a person exhibiting all the symptoms of COVID-19. In that scenario, he said it’s reasonable to believe their health would be at risk and they would be justified refusing work.

But what about having to take public transit and risk exposure to get to your job? Rudner said that likely wouldn’t pass the test.

“Traditionally, the fact that you might get sick on your way to work is not going to be a reason not to go to work, the same way it’s not an excuse to be late, if your bus was late,” he explained.

The resolution in that scenario would be to find alternative transportation.

Rudner pointed out that those with underlying health issues, or the elderly population, known to be vulnerable to the virus, could potentially be granted sick leave during the pandemic.

“I know a lot of people are getting notes from the doctor saying its unsafe for them to be at work,” he said.

Rudner said employers have an obligation to provide a safe work environment, and suggested they protect themselves from liability by adjusting workplaces to allow for the recommended two-metre separation between people.

“We’ve suggested staggering shifts so certain people work certain hours, having as few people in the workplace at the same time as possible,” he explained.

Rudner also recommended employees be allowed to wear personal protective equipment if possible, and spaces be cleaned and sanitized frequently.

Ultimately, he said concerned staff should address issues with their employers, and document any requests for accommodation or safety measures before refusing work, and contact the Ministry or an employment lawyer.