October 27, 2021
As the more contagious delta variant continues infecting Canadians, workers anticipate returning to workplaces that have been shut for much of the pandemic, and the media continues reporting instances of vaccine passport violence, workplaces may encounter instances of workers invoking their right to refuse work if they believe they are in imminent danger.
How likely is it these refusals could be upheld?
What we’ve learned from previous COVID-related work refusals is that if an employer is following provincial and public health requirements, then the circumstances under which a right to refuse is upheld would have to be extreme or unusual.
Take as an example an employee who must work with unvaccinated colleagues. “If the employer is doing what’s required, it would be a challenge to have a lack of vaccination or less than full vaccination of staff as a justifiable basis for a worker refusal,” says Jeremy Warning, a partner with Mathews, Dinsdale & Clark LLP.*
Nevertheless, Jeremy points to two circumstances that could provide the basis for a work refusal even if employers are following requirements. The first would be the elevated risk of violence a worker faces from clients or customers in a workplace where vaccination passports are required for entry. The second, a work refusal from a susceptible worker — “someone at a greater risk of a severe outcome if they became infected with COVID-19,” explains Jeremy.
He offers employers the following guidance for addressing fears worker may have and preventing work refusals.
- Respond to concerns before they become work refusals. Encourage employees to bring their COVID-related concerns or fears forward. Find out what is prompting their concerns, and what kind of reassurance or accommodation would help make them feel more comfortable. If you make changes, communicate them to anyone who may be affected.
- Tell your workers what you are doing to protect them against COVID. “Communication is key,” says Jeremy. What prevention measures do you have in place? Enhanced cleaning, physical distancing, masking, screening? Are you mandating or encouraging vaccination? “That way, everyone understands what’s expected in terms of COVID prevention behaviour in the workplace, and what standards they will be held to at work. This will limit the chance of a work refusal based on some level of confusion about employer policy.”
- Revisit your violence and harassment policy if your business is required to enforce new vaccine passport requirements. “Do the new requirements create an enhanced risk or potential for workplace violence? And if so, do you need to modify your procedures for your front-facing staff.” Among other things, ensure your employees know the warning signs for violence, such as swearing, clenched fists, and heavy breathing, how to respond in a non-threatening manner, and how to get help from a supervisor, manager, security, or police.
- Take extra precautions to protect susceptible workers. Workers with compromised immune systems or medical conditions that put them at greater risk will require more protection than less vulnerable workers. “It may be that they wear a mask that provides greater protection than a source control mask that others may be required to wear. Or it may be an enhanced physical distancing requirement.” The precautions to take will depend on the specific circumstances.
How WSPS can help
The following three articles contain useful insights:
- 9 suggestions to help avoid work refusals
- Can employees refuse to work because of the pandemic?
- COVID-19: your top questions answered
Need help building a safety plan? Try the province’s online workplace safety plan builder. The builder leads users through an easy three-step process to develop a customized plan for their business.
Also check out Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses, published by the U.S. Centers for Disease Control and Prevention.
* Mathews Dinsdale and Clark LLP, a leading Canadian law firm, addresses the issue of work refusals in this article, FAQs: COVID-19 and the Workplace. Check out other insights published by the firm on COVID-related workplace issues.