At the direction of the YUFA membership at the Special General Membership Meeting on February 9, 2022, YUFA is issuing the following statement to members explaining their right to refuse unsafe work.
This document was prepared to provide general information for YUFA members. Contact the Association for help with specific concerns or situations.
The Occupational Health and Safety Act (“OHSA” or the “Act”) gives a worker a right to refuse work that they have reason to believe is likely to endanger them. The Act sets out a specific procedure that must be followed in any work refusal.
Generally, an employee who refuses to follow their employer’s directives (which could include the directive to teach in person) risk being disciplined, up to termination. The right to engage in a work refusal under the Act is an exception to this rule. But there are procedures that govern when and how workers can refuse unsafe work, so it is important to know what to do. Unless the proper work refusal procedures are followed, a worker who refuses the employer’s direction to attend or perform work risks being disciplined, up to termination.
A worker may refuse to work (or to do particular work) where they have reason to believe that the physical condition of the workplace (or part thereof) is likely to endanger them (s. 43(3)(b) of the Act). This determination should be made by individual members acting independently, based on their own genuine belief, and will generally involve the individual employee showing up at work and assessing the risks before making a determination that the work appears likely to endanger them.
At Stage 1, you are required to report the circumstances of the refusal to the employer. You should also notify the Association. The employer is then required to investigate the work refusal. This must occur in your presence, and if available, a health and safety committee member or representative, or a person selected by the Association for their knowledge/expertise.
Until the investigation is completed, you should remain in a safe place as near as reasonably possible to the workplace and available to the employer for the purposes of the investigation.
The investigation and any corrective action by the employer may resolve the concerns, in which case the work refusal ends and you return to your duties.
Where, following the investigation and any corrective steps, you have “reasonable grounds to believe” the workplace continues to be likely to endanger you, you may continue to refuse to work, and the work refusal moves to Stage 2. Call the Ministry of Labour if the employer has not already done so.
The Ministry Inspector will investigate the work refusal in consultation with you, the employer, and the health and safety representative who was present at the first stage, if applicable. The inspector may carry out the investigation in person, or in another manner, such as by telephone. You should remain as near as reasonably possible to the workplace during your normal working hours in a safe place and available to the inspector for the purposes of the investigation. The employer may assign reasonable alternative work at this time. The test at this stage of a work refusal is objective (that is, whether the circumstances are likely to endanger the worker). The inspector will provide a written decision to you and the employer. The decision can be appealed to the Ontario Labour Relations Board.
If the inspector agrees with you, the employer must implement any steps ordered by the inspector. If the inspector does not uphold your work refusal, you no longer have a statutory right to refuse unsafe work, and you may risk discipline if you continue to refuse work.
At any time, you should contact the Association for assistance with your situation.
The Act creates a system for work refusals that is heavily dependent on the unique facts of each particular case. In YUFA’s view, it is also not well suited to the circumstances of a global pandemic; nevertheless, this is the legal procedure that is in place and must be followed to exercise the right to refuse unsafe work. Experience to date is that the Ministry of Labour has dismissed nearly all work refusals involving employee concerns about working during the COVID-19 pandemic. For example, last year Global News reported that between February and May 2020 Ontario employees filed at least 265 work refusals related to the COVID-19 pandemic with the Ministry, but the Ministry upheld only one.
For clarity, the right to refuse unsafe work under the OHSA is distinct from a right to be accommodated in the workplace under the Human Rights Code. A worker who has concerns relating to their own health conditions/disability, or their family/marital status, may seek accommodation. Speak to the Health, Safety & Employee Well-Being Office, and contact the Association for assistance.