On March 23, 2020, the provincial government announced that all non-essential businesses would be shut down in order to contain the spread of COVID-19. Many “essential” businesses, such as marijuana dispensaries and mining operations, remain open and employees are concerned about whether their workplaces are safe or whether their employers have to let them work from home.
Short answer: Employers do not necessarily have to allow employees to work from home. Under Ontario’s Occupational Health and Safety Act, employers are required to:
- Take reasonable steps to protect employees in the workplace. This is not a one-size-fits-all, but must be designed to take into consideration the nature of the work and the likelihood of the hazard.
- Communicate any workplace hazards to its employees; and
- Train their employees on how to mitigate risks of workplace hazards.
The employer’s precautions depend largely on the likelihood of COVID-19 transmission in the workplace. Such precautions may include keeping the workplace clean and sanitary, providing employees with sanitary wipes and sanitizer and instructions on proper hand washing and social distancing. In a healthcare setting with increased risks, the precautionary measures may be more rigorous.
Provided that reasonable precautions have been taken to make the workplace safe by reducing the likelihood of COVID-19 transmission, the employer has complied with its health and safety obligations. Employers could be prosecuted for failing to take adequate steps to keep employees safe from infection.
Can I refuse to work? Doesn’t the employer have to send me home?
The Occupational Health and Safety Act allows employees to refuse to work if she/he REASONABLY believes that the work is dangerous. It is not enough for an employee merely to FEEL unsafe. That belief must be a reasonable one, based on the real risks of exposure to the virus in that particular workplace. Employers cannot reprise against employees for refusing unsafe work. While sending employees home to work may be a viable option to reduce the risk of infection, there is no free-standing right to work from home as a result of COVID-19.
This blog post was written by Nigel McKechnie, a member of our Employment Law team. Nigel can be reached at 613-369-0382 or at nigel.mckechnie@mannlawyers.com.
