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My Employer Wants to Force Me Back to Work – What Are My Legal Rights?

November 17th, 2020 in Employee Rights

COVID-19: Refusing to Attend the Workplace Due to COVID-19 Concerns

The American spiritual teacher, author, and philosopher Vernon Howard wrote that our freedom can be measured by the number of things we can walk away from.  In Ontario, an employee is free to walk away from and refuse to return to work if an employer has failed to put in place reasonable and appropriate workplace safeguards against COVID-19.  The Occupational Health and Safety Act (“OHSA”) requires employers to take the following measures regarding COVID-19 (and other infectious diseases):

  • Establish reasonable precautions for protecting the health and safety of employees in the workplace (such precautions are tailored to an employee’s work and the possibility of exposure in the workplace);
  • Communicate to employees any hazards or potential risks; and
  • Provide employees with training in respect of workplace hazards and risks.

Under the government-recommended COVID-19 safety plan, employers are encouraged to establish controls to minimize the risk of COVID-19 transmission in the workplace, which include:

  • Screening employees for COVID-19 symptoms;
  • Assisting symptomatic employees with self-isolation;
  • Ensuring that employees in the workplace maintain a physical distance from each other of at least two (2) metres;
  • Regularly disinfecting workplace surfaces, objects, tools, and machines;
  • Promoting diligent personal hygiene (handwashing, cough/sneeze etiquette, etc.); and
  • Informing employees of any infected or symptomatic personnel who have attended and subsequently left the workplace while other employees are present.

If an employee is concerned about workplace conditions in relation to COVID-19 risks, an employer should consider whether:

  • The employee is subject to a medical or mental health condition which requires accommodation (for example, anxiety);
  • Modification can be made to the employee’s workplace in order to alleviate the employee’s concerns (for example, a separate room which isolates the employee from other employees);
  • Providing additional safety measures will help to alleviate the employee’s concerns; or
  • The employee may work from home.

 

Employer’s Right to Discipline

Under normal circumstances, if an employee refuses to attend the workplace without a reasonable basis for doing so, then an employer is within its rights to begin the disciplinary process.  However, during the COVID-19 pandemic, the typical disciplinary process and protocols should be adjusted to accommodate current realties.  A reasonable and responsible employer should permit:

  • Employees to take sick leave (disciplinary proceedings for a statutory sick leave may give an employee grounds for a reprisal claim
  • Employees to take time off where they must provide support and care to a family member who has contracted COVID-19;
  • Employees to take time off to care for children who are affected by daycare closures;
  • Employees to work from home where circumstances allow employees to do so.
  • Modifications to employees’ performance and attendance expectations where they are required to take sick leave, provide support to ill family members, or care for at-home children;
  • Accommodate employees who contract COVID-19 through changes to the workplace or working conditions.

Conclusion

The current employment terrain is as uncertain as it is unforgiving.  If you are concerned about returning to work with an expert in employment law to support you, please contact To learn more or to book an appointment reach out to J.F. Lalonde or call (613) 232-5773, and we will help you navigate your way to the best possible resolution of your employment matter.