Howard Levitt: Why employees can’t refuse to return to work because they fear an unsafe workplace
This is why the Ontario teachers unions’ court challenge to the opening of schools is bound to fail
My column earlier this week describing the consequences that can befall employees who run afoul of safe workplace protocols in dealing with the epidemic captured the attention of many. Some even accused me of an anti-employee bias.
They must have forgotten my earlier column describing the potential fines of tens of millions of dollar employers can face (and jail terms for their officers and directors) under the Ontario Emergency Management Legislation, as well as the significant penalties (up to $1,000,000) under Occupational Health and Safety Legislation (apart from potential jail time) let alone prosecution under the Criminal Code in a worst-case scenario. Similar provisions exist across Canada.
I can only imagine the paroxysms which would have enveloped those detractors if I had added to my cautionary tale that in addition to dismissal for cause, employees not practising workplace safety i.e. appropriate social distancing, personal protective equipment as required and risking the spreading of COVID-19 in their workplace, could face millions of dollars in damages from coworkers, their family members or, in the worst instance, their estates. That would indeed befall them if they were negligent in taking appropriate safety protocols, or attended the workplace even when they suspected they had the virus, and spread it to their colleagues or their families.
And the same applies to employers. If they fail to take appropriate safety precautions, in addition to the penalties referred to above, companies can be sued by customers, employees or members of the public who contract the disease in that workplace as result of the employer failing to take appropriate safety precautions.
What precautions are those? They are the ones set out by public health officials who, although their pronouncements lack specific legal weight, will be relied upon by courts and administrative tribunals in adjudicating what employers should prudently do.
If the employer has workers’ compensation for the group of employees potentially affected, those employees could not sue them but that does not protect employers from the rash of third parties who become ill or even die as a result of an employer’s carelessness.
That’s why, in the main, employees’ fear of returning to an unsafe workplace is unfounded. Employers have a very substantial economic incentive (as well as a human one) to get it right.
An employee cannot refuse to return to work because they lack confidence in the employer’s measures or believe that leaving their home or taking public transit is unsafe. Nor can they necessarily refuse to return to work because they are older or believe they bear a special risk because of their or their family’s health circumstances and degree of auto-immune vulnerability.
Every case must be determined individually, depending upon the conditions of that workplace or the employee’s particular vulnerability. For example, regardless of an employee’s circumstances if they had their own office, which no one else enters, they can hardly argue their workplace was unsafe.
To that point, there is a process before they can refuse to work. An employee must discuss their apprehensions with their employer, preferably in writing so there is evidence of those concerns, and, if the two cannot resolve it, either can ask for a Ministry of Labour Health and Safety Inspector to attend the workplace and make a binding determination. If the inspector rules the workplace unsafe, the employee (and others) must not work there until the employer resolves the identified safety issues. But if they rule it safe, the employee can be fired with cause for still refusing to attend. That complaint can be filed online on the Ontario government’s website.
In virtually every jurisdiction in Canada, inspectors have ruled workplaces safe in almost every case. That could be because, if it’s not, the employer will back down before it permits an inspector to determine that and shut that workplace down. But it’s also because there is no one more motivated than companies to ensure employees do not contract the virus in their workplace.
In short, there is a system in place to deal with this.
That’s why the Ontario teachers unions’ court challenge to the opening of schools is bound to fail. The unions are bypassing the inspector regime because they know, based on the rulings to date, that it would fail. They also know that the opening of schools in most provinces have been compliant with public health guidelines. What’s more troublesome would be these unions encouraging their members to call in sick. Some of the larger Ontario teachers unions have 133 sick days each year they are eligible for. In the private sector, employees calling in sick en masse, as I predict will occur, would be met with orders to attend medical examinations or discipline on the grounds that it was concocted, or private investigators hired to see if the employees in question were actually at home sick. To do otherwise is to condone fraud and abuse of taxpayers and parents. But that is not the quality of public sector employers we have today.
And now on to questions I received recently.
Q: My son is a year-round part-time employee who was laid off in March due to COVID-19. Now his regular job has called him back, but for limited shifts. If he earns less than $1,000 in August can he claim the Canada Emergency Response Benefit this month?
A: If you earn less than $1,000 in the four-week period in question, you are entitled to CERB.
Q: How come you never in these columns inform unionized employees that they can file a failure of due representation if they are unsatisfied with the union’s efforts to represent them?
A: If a union fails to represent a member on a meritorious case, the employee can file a duty of fair representation application to the Labour Relations Board. However, the success rate of these applications is very minimal. That’s because it’s not enough to prove the union was wrong. You have to show it acted arbitrarily, discriminatorily or in bad faith. Unions are inexpert bodies and are permitted to make mistakes as well as to trade off the interests of any one employee against what it views to be the interests of the entire bargaining unit, both respecting the issue in question and the costs of the arbitration. A unionized employee whose union will not take the case still cannot use a lawyer and sue privately.
Q: What is the difference between a furlough and a layoff?
A: A furlough is a layoff for a specific term rather than an indefinite layoff.
Q: I’m in a non-union job and have the longest service of my co-workers. We all put in an application for the same holiday week. Who gets the week? Does seniority have any bearing?
A: An employer can decide when each worker will take vacation depending upon its needs, not on seniority or employee preference. Such an employer though will not retain its workforce.
Q: I’m a supervisor with 10 years of service. I earn $120,000 and my employer wants to cut $10,000 from my salary but decrease my work day by one hour. Do I have any recourse?
A: Since the reduction is under 16 per cent, it’s not a constructive dismissal. However, it is a breach of contract so you can work the hours offered but sue for the difference in pay.
Q: I was a truck driver and getting paid for 50 hours guaranteed as per my contract. Once COVID-19 hit I’m getting paid for the hours that I actually work, 40-45. Any options?
A: The answer is the same as to the question above.
Got a question about employment law during COVID-19? Write to me at [email protected].
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.