Workplaces are slowly reopening, but can you refuse to go back?

Click to play video: 'Coronavirus outbreak: workers’ rights when returning to work'
Coronavirus outbreak: workers’ rights when returning to work
WATCH: What are workers’ rights when returning to work after COVID-19 closures? – May 21, 2020

After months of closures due to the novel coronavirus outbreak, provinces are slowly beginning to allow office spaces and other workplaces to reopen.

However, many employees still have concerns about the rapid and easy spread of COVID-19 in these enclosed, densely populated spaces.

That’s why Erin Bury, the co-founder and CEO of Willful Wills, is making the return to office “100 per cent optional” for her employees.

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“We started by doing a company-wide survey to find out what people’s attitudes are towards remote work and the return to the office,” Bury told Global News. “Knowing there are some who have concerns about returning to work prior to a vaccine, we’re allowing employees to work full remote.”

In consultation with human resource experts, the Toronto-based company’s office building manager and public health, Bury is working to create a plan that balances “the desire to get back into the office with the concern for employee health and safety.”

“Unlike a lot of large employers who face issues with commuting to the office or taking elevators in office buildings, we’re a team of 10 people — nine of whom can walk (or) cycle to the office — and we’re located on the second floor of a building, so we don’t have to take an elevator, which really eliminates a lot of the risk of getting to the office,” Bury said.

Click to play video: 'What you need to know about returning to work after self-isolation'
What you need to know about returning to work after self-isolation

For employees who want to return to the office, Bury says the workspace is being redesigned to ensure desks and workstations are six feet apart. There will also be limited use of common areas and meeting rooms, and the company will provide masks, hand sanitizer and other cleaning products to employees.

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“Each team will return one to two days a week on staggered days … This means there won’t be more than three to four people in the office at a time, which will make it much easier to social distance,” Bury said.

With employees on edge about re-entering the workplace and the possibility of contracting COVID-19, flexibility is more important than ever, said Kevin Banks, director of the Queen’s Centre for Law in the Contemporary Workplace.

Click to play video: 'Employment rights you need to know as Canada’s economy slowly reopens'
Employment rights you need to know as Canada’s economy slowly reopens

Lacking flexibility as workplaces reopen will likely “erode goodwill” between employers and their employees, Banks said.

“I would think that, in many situations where employers care about this sort of thing, they will work it out as best they can in discussion with the employees.”

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However, if your employer doesn’t offer any flexibility, there are some things you should know about your rights as an employee if you don’t feel safe from COVID-19 at work.

Safety concerns

Can you refuse to return to work, or will you lose your job?

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According to Katherine Lippel, a law professor at the University of Ottawa and Canada Research Chair in occupational health and safety law, the answer will be different for everyone.

“The first thing I would do, if I was somebody who was asking myself whether I can refuse (to work), is contact my union,” Lippel previously told Global News.

“(Roughly) 30 per cent of Ontario workers and 40 per cent of Quebec workers are unionized, and the unions are often developing collective responses to these (situations).”

For all workers, Lippel recommends seeking personalized legal advice that is specific to your situation.

However, the Canada Labour Code provides the right to refuse to work in dangerous conditions to federally regulated workers. This includes industries like broadcasting, banking and transportation. Provinces have similar health and safety legislation. 

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It’s important to note that it’s relatively difficult to prove that you feel too unsafe to work, Lippel said. In this situation, that burden will be on you — the employee — to prove that there were legitimate reasons for your feeling unsafe.

Click to play video: 'Childcare rights for parents as Ontario reopens'
Childcare rights for parents as Ontario reopens

“If, for instance, you are in a province where public health has defined what is required for work to be safe … if that is not being complied with, that’s a first indication that perhaps there’s something out of order that should be looked at,” Lippel said.

For example, if you work on an assembly line and you’re asked to return to work where you stand right beside your colleague and right in front of another colleague, this would not be considered physical distancing.

“If you ask those questions and you’re told that … nothing has been done, then it looks like you should be able to exercise your rights,” Lippel said.

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That said, it’s important to keep in mind that the coronavirus pandemic is an unprecedented situation, and the impact it will have on the workplace will be on a scale never before seen in our lifetime.

Child care

As child care centres begin to reopen in provinces like Saskatchewan, New Brunswick and Ontario, it may be the case that your workplace seems safe, but your child’s daycare does not.

When the Ontario government announced that daycares would reopen on June 12, many parents expressed reluctance about sending their children because they were worried they might catch COVID-19.

How this affects your refusal to return to work will depend, Banks said.

“There are two sides to the question that employees face when they’re thinking about this: One is, how safe is the daycare? And second, are there people in their family circle who are particularly vulnerable to (the virus)?” he said. “If you have elder care responsibilities … that would factor into the situation.”

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If you’re not satisfied that your child’s daycare has social-distancing capabilities and adequate personal protective equipment, then you would have a “reasonable basis for saying, ‘that’s not a solution for me,'” Banks said.

Your case for not returning to work would be made even stronger if you had eldercare responsibilities.

Click to play video: 'Employee rights during the COVID-19 pandemic'
Employee rights during the COVID-19 pandemic

However, if your child’s daycare is following all public health guidelines and so is your workplace, your argument that you don’t want to return to work because you feel unsafe is significantly weakened.

Michael Lynk, a law professor at Western University, agrees.

“If the workplace or the daycare complies with what the health authorities say, then there isn’t a basis for somebody to justifiably refuse to work,” he said.

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“On the other hand, if the daycare or the workplace is not compliant with the directions of the health authority on how to work safely in the shadow of the pandemic, then the person would have a reasonable basis under the law to be able to justifiably refuse to go to work.”

Making informed decisions

Each province and territory also has an occupational health and safety act and most include some version of the right to refuse unsafe work.

It would be difficult to make a case for feeling unsafe at work or your child’s daycare unless you went there physically first.

“An employee (can) say, ‘I feel that this machine is unsafe to work on. I’m going to stop work and I’m going to tell my supervisor it’s unsafe,’” said Jennifer Heath, partner at Piccolo Heath LLP in Toronto.

If you simply don’t show up to work, you need to provide your employer with a reason why you didn’t come in.

Click to play video: 'Navigating a return to work amid the pandemic'
Navigating a return to work amid the pandemic

Banks believes employees will only be able to make an informed decision about whether it’s safe to return to work if and when each province provides accurate information about community transmission.

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“Personally, for the benefit of both employers and employees, I’d like to see public health agencies making information available on the community spread at a local level,” Banks said.

“Then people can make informed decisions about how to manage these risks as we open again.”

Click to play video: 'Expert advice for those who are nervous about returning to work'
Expert advice for those who are nervous about returning to work

Lior Samfiru of Samfiru Tumarkin LLP also expects a lot of “confusion” because the rules about what makes a workplace safe in the eyes of the government during the pandemic haven’t always been clear and are often changing.

“I expect many work refusals and a lot of government inspectors being called into (the) workplace,” he previously told Global News.

“I think you’re going to see a lot of this confusion and a lot of people doing what they believe is right when it’s probably not actually right.”

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If you’re an employee nervous about re-entering the workplace, a good place to start is an open, honest discussion with your employer.

“Talk about what can be done … to make you feel safe and make the workplace more conducive to working,” Samfiru said.

“I think a lot of employers are going to be receptive.”

Questions about COVID-19? Here are some things you need to know:

Symptoms can include fever, cough and difficulty breathing — very similar to a cold or flu. Some people can develop a more severe illness. People most at risk of this include older adults and people with severe chronic medical conditions like heart, lung or kidney disease. If you develop symptoms, contact public health authorities.

To prevent the virus from spreading, experts recommend frequent handwashing and coughing into your sleeve. They also recommend minimizing contact with others, staying home as much as possible and maintaining a distance of two metres from other people if you go out. In situations where you can’t keep a safe distance from others, public health officials recommend the use of a non-medical face mask or covering to prevent spreading the respiratory droplets that can carry the virus.

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In situations where you can’t keep a safe distance from others, public health officials recommend the use of a non-medical face mask or covering to prevent spreading the respiratory droplets that can carry the virus.

For full COVID-19 coverage from Global News, click here.

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