Return to Work Post-COVID Lockdown

  • An employer has a general obligation to take reasonable precautions to protect the health and safety of its workers.
  • A worker is entitled to refuse work if they have reason to believe that it is likely to endanger them.
  • When a worker refuses to work on the basis that it is unsafe, an employer must internally investigate the situation and take necessary action to remedy the situation, if any is required.
  • If the worker continues to refuse to work on the basis that it is unsafe, a government health and safety inspector must be notified and will investigate the continued work refusal (the investigation may or may not involve a visit to the workplace). If the inspector finds the statutory threshold to justify the work refusal is not met, the refusing worker will be expected to return to work.
  • A general fear of COVID-19 will not be sufficient to establish an unsafe work environment, especially if the employer has taken preventative actions in accordance with the advice of public health authorities to protect the health and safety of its workers.
  • If a worker refuses to return to work because they would rather not work, or they have a general fear of COVID-19, the employer may be able to treat them as having voluntarily resigned from their employment.
  • There are certain reasons related to the COVID-19 pandemic that may entitle a worker to a job-protected, unpaid leave of absence, including if the worker needs to stay home to care for children in the absence of any other option, including daycare.
  • Workers with unique circumstances, such as a compromised immune system or other disability, may need to be accommodated. What is a reasonable accommodation will depend on the circumstances.

 

Each situation is unique, and you are advised to consult with legal counsel about your specific situation if you have any questions.

 

 

By: C. Danielle MacLean, LL.B., Partner

The information and materials found on this blog are provided for general information purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. You should consult a lawyer before relying on any information contained herein.