As the Province’s economy begins to reopen, employers and businesses are beginning to recall their employees. Many employees are concerned about the health hazards that a premature return to work may pose. Employers are concerned about the legal challenges they may face if an employee refuses to return to work. On account of the foregoing, the question on many peoples’ minds at the moment is, can an employee refuse to return to work due to Covid-19? In short, the answer is no, though there are exceptions.
Provided that the employer is legally permitted to open its doors (i.e. provincial orders do not restrict the industry or type of business the employer operates in), employees are obligated to return to work.
An employee who refuses to return to work after they’ve been officially called back by their employer may be deemed to have resigned from their position. This would mean that their employment relationship has ended. Not only would the employee be out of a job, but by resigning they would also be relinquishing their common-law and statutory rights to termination and severance pay. Accordingly, well-advised employers, intent on downsizing their workforce and eliminating positions in the face of economic contraction, will be quick to interpret refusals as resignations.
Exception 1 – Medical Accommodation for an Employee’s Disability
The Ontario Human Rights Code (the “Code”) requires employers to accommodate employees on the grounds of disability. Employees who are immunocompromised and particularly vulnerable to the menacing symptoms associated with the contraction of Covid-19, can request accommodations from their employers on the grounds of disability. Employers are obligated to accommodate the employee up to the point of causing undue hardship.
Exception 2 – Work Refusals Pursuant to the Occupation Health and Safety Act
As businesses begin to reopen, the Province’s Ministry of Labour has released guidelines to protect workers, customers and the general public from Covid-19. Employers are encouraged to follow the recommendations, though it remains to be seen whether such guidelines will eventually become mandatory. In any case, Employers continue to have an obligation to take reasonable care to maintain a safe and healthy workplace under provincial occupational health and safety legislation. Employees who believe that the employer is failing in this regard can refuse to work where they have a reasonable basis to believe that their duties present a danger to their health or safety. This may occur, for example, where the employer fails to provide adequate Personal Protective Equipment. Accordingly, employers have a legal obligation to ensure that appropriate procedures are in place to ensure that threats of contagion among employees are mitigated.
Exception 3 – Family Status Accommodation
Due to school closures, many employees will have child-care obligations that preclude them from returning to work. Employers are obligated to accommodate these employees, provided that they demonstrate that they have exhausted all alternative means of providing care for their children. Since family status is an enumerated ground of the Code, Employers have an obligation to accommodate employees’ child-care obligations.