What to know if you are recalled to work (and you’re unsure it’s safe)

By Paul Russell, LegalMatters Staff •

As Ontario businesses gear up after weeks of lockdown, Toronto employment lawyer Ellen Lowsays she has been busy answering questions from employees about their legal entitlements during a pandemic.

“Due to COVID-19, the right to refuse work is becoming more and more of an issue,” says Low, principal of Ellen Low Employment Law. “I’m getting many enquiries about whether people have to return to work if recalled and what legal protection they have if they do.”

She says a recurring concern is that workplace safety measures are not adequate in terms of distancing or the availability of personal protective equipment (PPE).

Complaint mechanism

“There is a complaint mechanism built into the Occupational Health and Safety Act that allows employees to refuse work that would endanger their life or health, but this risk is sometimes very difficult to prove,” Low tells LegalMattersCanada.ca.

If an employee files a work refusal, she says the Ontario Ministry of Labour would investigate to determine if it is justified.

“The challenge we are seeing with these enquiries is twofold,” says Low. “One, investigators are extremely busy right now. Two, where there have been work refusals due to unsafe conditions, investigators have been overwhelmingly siding with employers and ruling that reasonable precautions against COVID-19 are in place and therefore the refusals are not justified.”

According to a recent Toronto Star article, more than 200 workers have filed work refusals in the past few months, though not a single one was upheld by the labour ministry.

‘Draws attention to the problem’

“Just because a refusal is denied doesn’t mean an employee can’t or shouldn’t file one if they feel the work is unsafe,” she says. “That draws attention to the problem and the particular workplace. Even if the refusal is not upheld it can proceed as a complaint, which can result in an order from the ministry. Those orders might address the employee’s issue.”

According to the Star article, the ministry has issued 1,386 orders related to COVID-19 to employers.

“Under our health and safety legislation, employers must provide a safe work environment, but that can be a balancing act,” says Low. “When people complain about the lack of PPE or the absence of protocol regarding safe distancing, the solution might be working remotely, but that is not always possible.”

She says employees can also ask a physician for a medical note.

“If a doctor can attest the person’s health would be put at risk if they return to work, the employer has obligations under the Ontario Human Rights Code to accommodate, up to the point of undue hardship,” Low says.

When people are recalled after the lockdown, she says there are practical issues to consider.

Recalls could come with conditions

“If you called back to work, you may find out that it is not for the same position you held before, or it could be at a lower rate of pay or with reduced hours,” Low says. “In that case, you need to consult with legal counsel to protect your rights.

“Is this a change you should be agreeing to and how will it affect your entitlement to things such as Employment Insurance?” she adds.

Most of the people contacting her are employed in the manufacturing or hospitality sectors, Low says, and both sectors have been hard hit by COVID-19 layoffs.

“Employers are also calling me, asking her about their rights when it comes to recalling employees, especially if they want to make some changes in their workforce,” she says.

“Because of the nature of employment law, we have to look at each case individually to determine if employees can be asked to return if the terms and conditions of their position have been modified.”

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