With more businesses reopening, some employees are anxious about going back to work in the midst of the coronavirus pandemic, worried their health could be at risk and wondering if they have any rights not to return.
In southern Alberta, for example, the union for workers at the meat processing plant Cargill have been trying to stop its reopening, saying that the vast majority of employees fear returning. (Nearly half of the company’s 2,000 staff have tested positive for COVID-19.)
Lior Samfiru, a Toronto-based employment and labour lawyer, said the most common question workers are asking him is whether they have to return to their workplaces if they’re concerned about being infected. Employers are also asking him what they should do if an employee doesn’t want to return.
Here’s what you need to know about your employment obligations if called back to work and any recourse you may have.
Do employees have to go back into work if asked?
“There’s really no choice. If it’s a safe workplace, the employee has to go back to work,” said Howard Levitt, a Toronto-based employment and labour lawyer.
Samfiru agreed that as long as the employer has met the safety requirements and precautions that the provincial and territorial health authorities have put forward, the employee is required to return.
“Despite the fact that the employee may have concerns or may otherwise feel unsafe, the employee does have to go back.”
If they choose not to, the employer will be well within their rights to consider that a form of misconduct, or, a resignation, meaning simply the worker would lose their job, and any benefit they are currently getting from the government, Samfiru said.
“That notion that many people have that I can simply decide not to come into work — that is incorrect,” he said. “I think a lot of people are going to find themselves on the end of a resignation when they didn’t intend to resign.”
What questions should employees ask their employer before they return?
Before returning, the first step employees should take is to inquire about the safety procedures that are going to be in place to ensure the risk of exposure to the virus has been lessened, said Calgary-based employment lawyer Randi Collins.
Employees should ask, for example, what PPE or protections will be provided or are they expected to provide these items themselves, Collins said.
For example, if they are retail cashiers, they should ask what methods are going to be used for payment, and whether their employer will be putting up any kind of barrier between them and customers. They should also ask about what physical distancing measures have been put in place.
“Those types of inquiries are essential,” Collins said. “If you refuse to go back to work without making any reasonable inquiries as to what they’re going to be doing to lessen your risk, it may lead one to perhaps determine that you may be doing so in bad faith or not taking a reasonable approach to do so.”
What if an employee doesn’t believe their workplace is safe?
Employees who believe the employer has not implemented safety measures to make their workspace as safe as possible, or met the safety guidelines set out by the government, can engage in what’s known as a work refusal.
Watch labour lawyer Howard Levitt explain the ins and outs of returning to work:
That’s a formal process in which the employee advises the employer about refusal, and the employer has to try to fix the problem, Samfiru said.
If the problem can’t be fixed, an inspector from the Ministry of Labour is called who then reviews the workplace and determines whether in fact the workplace is safe and meets the required criteria. And, ultimately, whatever the inspector says it is binding on the parties, Samfiru said.
“If they say no, that’s unsafe, an employer must make those changes. If the inspector says no, it’s fine, the employee has to go back to work,” he said.
During that time of the investigation, however, the employee is not obliged to work, said Levitt.
Watch: Chrystia Freeland addresses workers’ rights to refuse to return:
During question period on Tuesday, Deputy Prime Minister Chrystia Freeland emphasized that employees across Canada can refuse work in an unsafe work environment and would still have access to the Canada emergency response benefit.
“No Canadian worker at any time should feel obliged to go to work in unsafe conditions,” she said in response to a question about the situation at the Cargill plant.
Can we expect to see a lot of workplace investigations?
“Various provinces have said that they understand that this is going to be happening more often so they are hiring more of these inspectors,” Samfiru said.
“The number of businesses that reopen and the number of employees that are affected, I expect this to be a massive issue for the Ministry of Labour in each province to deal with. I think that [the inspectors are] going to be running around the clock 24 hours a day to various businesses.”
What are some of the potential challenges of investigating workplace safety?
Samfiru said inspectors are not necessarily trained to deal with these types of situations and said they deal with issues like assessing if a machine is safe, or whether there’s proper equipment in operating a piece of heavy machinery.
“They’re not necessarily there to be able to assess whether the workers are safe from a virus,” he said.
“I do think because of that, some of these individuals are going to find themselves in a situation where they can’t properly assess it so there may be decisions that are made that are not the best decisions.”
What if an employee returns to work and gets infected with COVID-19?
The best recourse in this case is through workers’ compensation and that in general an employee would not be able to take legal action against their employer, Samfiru said.
“Even if your employer was negligent in the safety precautions that they took, you would have recourse to apply for Workers’ Compensation,” he said.”This would be treated like a workplace accident or workplace injury.”
Those not covered by workers compensation legislation could take legal action if their employer was found to be negligent, he said.
But Levitt said determining were you were infected at work could be challenging.
“How do you know … as opposed to somebody at a grocery store or somebody on the street or somebody where you went for a walk or somebody in your household? It is difficult to prove.”