Workers have the right to refuse unsafe work. What does that mean in the context of a COVID-19 pandemic, when so much of what used to be normal human interaction is now potentially unsafe - and when it seems guidelines, rules, and best practices for staying safe keep changing? What can workers refuse to do, and how can they protect themselves from reprisal if they refuse unsafe work?
While the right to refuse unsafe work is one of the very most important rights workers have, it is not always well understood, especially in the unprecedented context of a global pandemic. There are two important things workers need to know when refusing unsafe work for COVID-19 reasons.
The first is what work can be refused. Under the Workers Compensation Act and Occupational Health and Safety Regulation, all workers in BC have the right to refuse work that they have “reasonable cause to believe … would create an undue hazard”. Being in the presence of other humans is a hazard during this pandemic - but is it an undue hazard? WorkSafeBC says that an undue hazard in the COVID-19 context is “where a worker’s job role places them at increased risk of exposure and adequate controls are not in place to protect them from that exposure.” There must be both an increased risk, not just the general risk of being in the world during a pandemic, and a failure to put in place adequate controls, whether those are social distancing rules, PPE, decreased capacity, or other protections.
The second thing workers need to know is how to refuse unsafe work. It is not a matter of just refusing to do the work and walking off the jobsite.
The Occupational Health and Safety Regulation requires workers to follow certain steps. First, the worker must report the unsafe circumstances to a supervisor or employer. The supervisor or employer must immediately investigate, and either fix the problem or tell the worker that the report is not valid in their opinion. If the worker still thinks the work is unsafe, then the joint committee or union (if there is one) or another worker (if there is no joint committee or union) gets involved. If the matter is still not resolved, then the worker and employer must notify WorkSafeBC who will come and investigate.
In a recent decision, the Workers Compensation Board dismissed a complaint by a worker who claimed he was fired for refusing unsafe work. The worker, a bartender, had phoned his workplace and reported that he felt unsafe coming to work and asked for his shift off. His employment was terminated. However, because the worker did not follow the steps set out above, he wasn’t protected by the right to refuse unsafe work. The Board pointed out that “saying the words ‘health and safety’… or otherwise invoking the Act does not operate as some sort of charm or incantation which operate to protect anyone who utters it.”
The Board emphasized that workers cannot leave the jobsite - or, in this case, not show up at all - due to an unsafe working condition. The Board noted that the purpose of this rule is “to ensure consultation between the parties in order to mutually resolve a potentially unsafe working condition” and that “to allow a worker to leave the jobsite would defeat this purpose”.
The Board also commented that there were protective measures available to the worker, such as hand-washing, wearing gloves, physical distancing, and “perhaps wearing a mask”, which the worker did not pursue.
What the worker ought to have done, in the Board’s view, was attend at the worksite to speak with his manager about his concern, and then remain at the workplace to carry out the rest of the steps as required under the Occupational Health and Safety Regulation.
While this author has some concerns about the wisdom of requiring workers to attend work to make a work refusal during a pandemic, the decision offers a caution for unions and workers who may be required to navigate new and evolving health and safety risks in the coming days, weeks and months.
If you have reasonable cause to believe that your work poses an undue hazard, due to COVID-19 or anything else, you should:
attend work;
report the circumstances of the unsafe condition to your employer;
state clearly that you are refusing to perform a specific work task(s) tasks because you believe it is unsafe;
remain on site until your employer has completed its investigation;
if you are not satisfied with the results of your employer’s investigation contact WorkSafeBC;
remain on site until WorkSafeBC’s investigation has been completed or you are instructed to leave.
A worker who fails to follow these steps may not benefit from the protections for refusing workers in the Workers Compensation Act.
Of course, each workplace and hazard are unique. As are the ways that employees can safely and lawfully make a work refusal. This blog post is general information only and does not comprise legal advice. If you need advice about making work refusal safely, and in accordance with section 3.12 of the Occupational Health and Safety Regulations, please contact your AQR lawyer.