COVID-19 and the Right to Refuse Dangerous Work
By Jeff Smorang
I am worried I could be exposed to COVID-19 at my workplace. Can I refuse to report to work?
If your workplace remains open during the pandemic, and working from home is not a feasible option, you are expected to go to work. However, as an employee, you can expect a safe work environment. Under Manitoba’s The Workplace Safety and Health Act, an Employer has a duty to provide and maintain a safe workplace for employees. On top of this obligation, Employers of more than 20 regularly employed workers are also obligated to establish a Workplace Safety and Health Committee. Under the Act, the Committee is to actively identify potential health and safety risks and is responsible for implementing reasonable measures to mitigate those risks.
At minimum, reasonable mitigation steps for preventing exposure of COVID-19 could include increased sterilization of common workplace surfaces, promoting regular hand washing or providing hand sanitizer stations and ensuring social distancing of 1-2 meters between co-workers and customers. Enhanced mitigation steps may be required in other circumstances.
If a worker has a safety concern, the Committee is also responsible for receiving, considering and disposing of safety and health complaints.
Under section 43 of the Act, a worker may refuse to work, or to do particular work duties, if he or she believes on reasonable grounds that the work constitutes a danger to his or her safety.
There are general exceptions to the right to refuse dangerous work that would be taken into consideration. A worker cannot refuse work where the refusal places the life, health or safety of another person in danger or where the danger is inherent to the employee’s work.
The standard process for refusing dangerous work has 3 steps:
The worker must report the work refusal to their supervisor and explain why they believe the work is dangerous. The supervisor and worker will work together to assess the risk and resolve the concern. Until the dangerous condition is remedied, or it is determined that there is no risk to safety, the worker who reported it may continue to refuse to work.
If the employer and the worker are unable to agree on a resolution, a worker representative from your Committee, or another worker, can be brought in to help assess the situation and attempt to resolve the issue.
If the Employer does not remedy the situation, the worker may continue the refusal and report the situation to Manitoba Workplace Safety and Health where a Safety and Health Officer is assigned immediately. Where necessary, the Officer will attend the workplace and make a final decision on whether the situation constitutes a danger or not.
Under the Act, the worker is entitled to be paid during the entire investigation process and cannot be subject to discriminatory treatment for having made a legitimate work refusal.
In the case of COVID-19, an Employer or Safety and Health Officer will have to determine, on a case by case basis, whether the risk of exposure is reasonably high enough to constitute a dangerous workplace. What is reasonable for exposure to COVID-19 will be influenced by our evolving scientific understanding of the virus and our Federal/Provincial Health Care directives. As of March 26, 2020, Manitoba has four public health orders in place. These orders limit public gatherings of more than 50 people and require businesses to ensure social distancing. The 50-person limit applies to theaters and hospitality businesses such as restaurants, however it does not apply to retail or manufacturing businesses.
At the moment, it is unlikely that a generalized fear of exposure to COVID-19 will be seen as reasonable grounds for refusing to work. That being said, if a worker is able to point to additional reasons as to why they are at a higher risk of exposure than the general public, either because of their personal circumstances or the circumstances of the workplace, a refusal to work may be reasonable. Some additional reasons may include (but are not limited to) the following:
- the age and health of the worker refusing to work;
- if there had been any suspected or confirmed cases of COVID-19 relating to the workplace;
- if any co-workers have recently traveled internationally in past 14 days;
- if the work requires you to travel, depending on the destination;
the Employer’s pandemic policies and measures in effect, for example increased sterilization of workplace surfaces or social distancing; and
the type of work performed and the relative risk of exposure (for example, whether the work requires face to face contact with customers, clients or patients).
Workers who are concerned about their health and safety at work during the COVID-19 pandemic should bring these concerns to their supervisor or to their Workplace Safety and Health Committee.