Please note this page will be updated regularly as we remain in close contact with both employers and members.
Right to refuse dangerous work
- Do employees have the right to refuse work due to fear of potential exposure to COVID-19?
Collective agreement provisions and health and safety legislation in all jurisdictions in Canada require employers to provide a healthy and safe environment for employees.
Under health and safety legislation, employees have the right to refuse dangerous work. This would include refusing work due to hazard related to the COVID-19 pandemic if the worker believes there is a hazard, their concern is communicated to a manager and the seriousness of the perceived danger justifies the risk.
Although the current pandemic has caused justifiable fear and anxiety amongst workers about their health, fear alone of a potential exposure will not be an adequate reason to refuse work.
Whether the work refusal is justified will depend on the facts and the measures taken by the employer to protect health and safety eliminate the potential danger in the workplace.
Some of the measures taken to reduce risk of infection to employees should include:
- Posting signage to alert workers of any signs and symptoms of acute respiratory illness,
- Display posters promoting hand-washing and respiratory hygiene,
- Ensuring tissues and alcohol-based hand rubs are available in bathrooms and other high traffic areas,
- Ensuring social distancing between workspaces,
- Encouraging employees to stay home when they are sick,
- Facilitating teleworking.
You can find valuable resources for businesses and employees on the Public Health Agency of Canada website.
- What are the potential consequences of refusing to work due to concerns about COVID-19?
Refusing to work in defiance of an employer directive is insubordination. The consequences could therefore be discipline.
However, if the refusal is deemed to be justified, the discipline could eventually be overturned by an arbitrator if a grievance is filed.
If you are considering a work refusal, be sure to contact your local health and safety representative as information from public health authorities about the relative risk posed by the virus in any given region or workplace continues to evolve.
- If I cannot refuse to work, what can I do to protect myself?
- Voice your concerns with your supervisor,
- Contact your union representative or your local rep on the Workplace Health and Safety Committee,
- If you have available leave, consider taking any personal leave to give you time to discuss the issue with your union rep before going into work,
- Let your union representative know if the employer is failing to put measures in place to protect workers’ health and safety (i.e. hand sanitizer, social distancing, telework).
Disclosure of pandemic illness and privacy rights
- Do I have an obligation to disclose that I have COVID-19 or that I have been exposed to it?
In normal circumstances, employers do not have a right to know an employee’s diagnosis.
With the ongoing national effort to flatten the curve of the pandemic, employers who require employees to self-disclose would likely be deemed to be in compliance with their obligation to provide a healthy and safe environment for all employees.
In these circumstances, if someone in the workplace was known to have contracted COVID-19, an employer would be directed by public health authorities to inform the persons who had the most direct contact with the individual. Employer’s rights would be limited to disclosing the information to those that need to know it.
Under legislation such as the federal Quarantine Act or emergency measures and public health legislation in provincial and territorial jurisdictions, public health authorities may direct employers to disclose personal health information to them about persons in the workplace who have tested positive or been directly exposed to persons who have tested positive for COVID-19 in order to reduce the propagation of the disease.
However, employers would still have an obligation to protect workers’ privacy rights and would not be allowed to share an individual worker’s personal health information with other workers who do not need to know the information.
For more information, please refer to the Office of Privacy Commissioner’s guidance on the application of Privacy Act and PIPEDA. You can also refer to your respective provincial privacy rights.
- Can an employer require me to provide medical documentation regarding my fitness to return to work after a COVID-19 illness?
On March 19, 2020 the Ontario government passed legislation Bill-186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which provides that an employee will not be required to provide a medical note if they need to take a leave related to COVID-19. Similarly, an employee would not be required to provide medical documentation upon return to work if they have had COVID-19.
In Quebec, the CNESST advise workers not to go to hospitals or medical clinics if they are not sick.
The Canadian Medical Association has called for the discontinuation of all medical notes in all jurisdictions during the COVID-19 crisis as this puts an unnecessary burden on the health care system.
However, if an employer has reasonable cause to believe based on consistent information that you may not be fit to return to work and may pose a risk to the health and safety of other employees, it may ask for additional medical documentation confirming your fitness to return to the workplace. This would be pursuant to the employer’s obligation to provide a health and safe environment for all workers under applicable health and safety legislation and the CA.
The request for information should be limited to what is necessary to make the determination regarding your functional limitations but should exclude any information identifying a disability.
The employer may not unreasonably deny you the ability to return to work if it is relying on impressionistic or discriminatory information. In fact, doing so could constitute discrimination on the basis of perceived disability. This arbitrary action on the part of the employer could be grieved and an arbitrator could eventually require an employer to reimburse you for any leave or income lost as well as damages for pain and suffering.
- What if I refuse to disclose that I have COVID-19?
If you willfully refuse to self-disclose a highly contagious disease such as COVID-19, this could be in violation of health and safety legislation requiring employees to disclose workplace hazards as well as directives from public health authorities.Discipline could result due to the significant health and safety risk you could pose to other workers. Further, it is likely that an arbitrator would find some measure of discipline to be reasonable. The fact that you intentionally refused to disclose would be an aggravating factor.
Work from home
- Can I ask my employer to provide me with the appropriate equipment to work from home?
While many employees have the necessary tools to work remotely, you may find you require additional equipment. Speak to your supervisor and union rep about it and try to resolve situation keeping in mind that what is reasonable in the office may not be in a temporary mandatory telework arrangement during a pandemic. Also, the employer may be required to provide you with a different but reasonable accommodation so that you are able to continue to telework.
As an example, Treasury Board has issued some guidelines for managers on how address requests for additional equipment. As a general framework, all requests are subject to departmental adaptation and approval. Who departments choose to equip will depend on the nature of the different types of work undertaken by employees, including their relative level of criticality, and the characteristics of their workforce, including employment status and location. However, departments need to consider, as a priority, equipping to satisfy duty to accommodate obligations; and occupational health and safety requirements.
- Is my manager allowed to demand that I send an email every morning and evening to indicate at what time I start and finish work?
The collective agreement provides for management rights, but those rights are not unlimited. They include the right to supervise and monitor your work. Every case is unique and management rights must be assessed to determine whether they are exercised reasonably or unreasonably. For instance, if your manager has no legitimate reason to impose this condition, you could challenge it, particularly during this pandemic, which is a very stressful time for all employees. If a measure seems excessive and unreasonable, first discuss the issue with your supervisor or your union representative.
- Is my manager allowed to go into my mailbox to check whether I’m working and on what I’m working?
Normally, the tools you use at work, including your computer and the network, belong to your employer. Treasury Board has a Policy on Acceptable Network and Device Use which applies to federal public service employers.
The labour board (FPSLREB) has confirmed that there should be no expectation of privacy when communicating electronically at work on the employer’s system.
Your employer could therefore monitor your compliance with the policy and acceptable use of its system, which includes accessing your mailbox when you are on leave and the work must go on.
The employer could also conduct an internal investigation to check whether your use of the equipment is acceptable. However, accessing your mailbox without just cause, simply to harass you, may potentially be an abuse of the power extended to management in the collective agreement and a violation of employer policy.
Human rights and COVID-19
- If I can no longer work my full hours due to family-related obligations, what are my rights?
If your family obligations meet the threshold for family status protection under human rights legislation, you could be entitled to accommodation to the point of undue hardship. You could also be entitled to alternative scheduling like reduced hours, variable schedule, etc.
Please note that all family-related obligations do not meet the threshold of human rights protection on the basis of family status. For more details, you can refer to PSAC’s guide on Duty to Accommodate.