Evaluating an Employee’s Refusal to Return to the Workplace During a Pandemic
By Nicole A. McAuley
Many workplaces in Ontario that were temporarily closed as a result of the pandemic have re-opened or are in the process of re-opening. With the risk of contracting COVID-19 still looming, employers are likely to find some employees are reluctant to return to their workplace. Employee reluctance may stem from reasonable safety concerns, or may simply reflect an employee’s preference to continue working from home. Employers must be prepared to navigate such requests in consideration of the Occupational Health and Safety Act [the OHSA], the Human Rights Code [the Code], and public health directives.
Before reopening a workplace, employers should develop a COVID-19 policy. The policy should be specific to the needs of each individual workplace and take into consideration the guidelines developed by the federal government, which are available here, and the provincial government, which are available here. Once the policy is established, each employee’s refusal to attend the workplace must be considered on a case-by-case basis.
COVID-19 and the OHSA
Employers have an obligation to take reasonable precautions to protect the health and safety of employees. Where an employee has a reasonable belief that their work conditions are unsafe, including due to COVID-19, they may refuse to attend the workplace on the basis of the protections afforded under the OHSA. If such a work refusal is made, the employer has an obligation to investigate the alleged hazard and eliminate or reduce same. Thereafter, the employee may still refuse to work if they have reason to believe that they are in danger. When this occurs, the employer or the employee must notify the Ministry of Labour [MOL] and a MOL inspector will investigate the refusal to work. A decision in writing is then released by the MOL, which will either require the employee to return to the workplace, or order the employer to take remedial measures. There is a lot involved in this process, which is beyond the scope of this blog post.
An employee may refuse to return to work due to a general fear that they will become infected with COVID-19. If the employer follows the federal and provincial guidelines, public health directives, and the OHSA requirements, the employer will likely be considered justified in determining that a work refusal because of fear of infection is insufficient. However, the employer is still required to complete the above-noted process under the OHSA in order to come to that conclusion.
COVID-19 and the Need for Accommodation under the Code
An employee who is under a requirement to quarantine in accordance with public health orders or directives cannot be compelled to return to workplace until they are able to safely do so. In such situations, job protected leaves may be available; however, if the employee is able to continue to work from home that accommodation should be provided.
There may also be situations where an employee cannot return to work because they are caring for someone infected with COVID-19 or do not have appropriate child care. Public schools in Ontario remain closed. While some day cares have reopened, spots are limited due to the provincial directives, and most summer camps/recreational activities have been cancelled. In such cases, employees may be entitled to job protected leaves. However, if such an employee has been successfully working from home prior to the workplace reopening, an employer should give serious consideration to a request for accommodation to allow the employee to continue doing so.
Some employees may advise that they are unable to return to the workplace because they are at high risk of contracting COVID-19, are likely to endure significant complications if they contract the disease, or have other medical considerations relating to mental or physical health. If the accommodation request is medical in nature, an employer would typically request a letter from a treating physician. However, since the outset of the pandemic, the Province of Ontario has mandated that employers are not permitted to ask for medical documentation to substantiate an absence from work due to COVID-19. In such a situation, an employer should assess the information provided by the employee. Employers have an obligation to assess each request for accommodation individually to determine what can be done up to a point of undue hardship. Where an employer suspects that an employee requires accommodation but the employee has not requested it, employers have a duty to inquire whether the employee has such a need.
It may be possible to accommodate in a way that would allow the employee to return to the workplace. Such accommodation may include staggered start and end times, a schedule that includes both attending at the workplace and working from home, or modifications to an employee’s work space. Employers can propose an alternative form of accommodation and request the employee’s feedback with respect to whether it would meet their needs. An employee is not entitled to work from home merely because they request this form of accommodation. If a reasonable alternative is offered that would sufficiently meet the employee’s needs, they are required to engage with the employer to find reasonable accommodation. Employers must keep in mind that they have a positive obligation to accommodate employees to the point of undue hardship, and the standard to establish undue hardship is very high.
If a request is not based on a need for accommodation or legitimate health and safety concerns, an employer is entitled to require that the employee return to the workplace. In such situations, an employer may wish to advise that employees were only permitted to work from home due to health and safety concerns and public health directives. As the workplace has now reopened, if there are no legitimate reasons upon which a request is made, employees are required to return to the workplace. This can be a complicated and subjective process that requires careful consideration and interpretation/application of the above-noted legislation and common law. Employers should seek legal advice to assist with these requests in order to ensure that the rights of all involved are protected.