COVID-19: Occupational Health & Safety (OHS)
In Alberta, the Occupational Health & Safety Act (the “Act”) governs the obligations of employers and employees with respect to safe working environments. The following article sets out obligations of employers and employees in Alberta under the Act, in light of the recent COVID-19 pandemic.
As scientific knowledge of this virus expands and the facts on the ground are continuously developing, we recommend that you check recent updates with respect to safety and COVID-19 from the Government of Canada, Alberta and the World Health Organization.
As this is not client-specific, this document is merely information and not legal advice. Before taking any steps, we urge you to seek legal advice to confirm that those steps are appropriate at the current time and in light of your specific circumstances. Our main office contacts for Employment Law are at the bottom of this document.
OBLIGATIONS OF EMPLOYERS TO ENSURE HEALTH AND SAFETY OF WORKERS
In general, employers are responsible for ensuring, as far as it is reasonably practical, the health, safety and welfare of both their own employees and other persons who may be affected by hazards originating from their work site.
The level of danger or hazard presented by COVID-19 in any given workplace is fact specific and will depend on many factors, including: (i) how many employees are present at any given time, (ii) the frequency and proximity of interactions between employees themselves and between employees and the public, and iii) whether the workplace has any employees with COVID-19. Each employer is obliged to assess its own work site(s) to identify existing and potential hazards, and then eliminate and/or control such hazards, as far as is reasonably practical. Alberta Occupational Health & Safety has posted an updated bulletin on information for employers, supervisors and workers with respect to respiratory viruses and the workplace which you can find here.
Once the level of hazard presented by COVID-19 has been assessed, the employer will have to take reasonable steps to mitigate this hazard. Depending on the makeup of any given site, employers can undertake engineering controls (such as ventilation systems or physical barriers), administrative controls (such as worker training, social distancing and alternate work arrangements), or personal protective equipment (PPE) to control hazards caused by the spread of COVID-19 in their work sites. The types and mix of controls put in place will vary on a case by case basis and will depend on, among other things, the risk of exposure to the hazard.
Employers must ensure that hazard assessments are conducted at reasonably practicable intervals to prevent the development of unsafe and unhealthy working conditions. Staying on top of recommendations from top health advisors is essential. One step that many employers take is to advise their employees what controls they are adopting to protect the employees. If the employees request additional controls that are reasonably practicable, the employer may have to consider undertaking such controls.
THE RIGHTS OF EMPLOYEES TO REFUSE UNSAFE WORK
The Occupational Health and Safety Act also provides employees the right to refuse to work or refuse to do particular aspects of their job, if the employee believes on reasonable grounds that there is a dangerous condition at the work site or that the work constitutes a danger to the worker’s health and safety.
When can an employee refuse?
What qualifies as “danger” is fact specific and depends on the individual circumstances in each case. The initial stage of the analysis requires only that the employee have a genuine belief that he/she will be endangered if forced to continue the work. This means that, so long as the employee has a subjective and genuine/sincere believe that he or she is in danger, and such belief is objectively reasonable in light of the circumstances, this initial threshold is often met. Employees refusing work are given the benefit of the doubt regarding the sincerity of their concern and they do not have to be correct that the danger actually exists in order to reasonably refuse work.
The reason for this relatively low threshold is to protect employees. Employees should not have to fear punishment or recrimination if they refuse to work and then turn out to be mistaken about the existence of the alleged danger or the level of danger.
The question for employers therefore is whether a refusing employee has a reasonably held and sincere belief that performance of his/her work will put him/her in danger in light of the COVID-19 pandemic. Implementing the engineering and administrative controls, as well as providing PPE where necessary at the outset, may relieve some feelings of danger in the workplace and influence an assessment of the reasonableness of the employee’s beliefs. Informing employees that steps are being taken to mitigate risk may also reduce the perception of danger.
What are the employer’s obligations once work is refused?
Procedurally, once an employee refuses to work, he or she must immediately notify the employer of both the refusal and the reason for the refusal. This notification must be done at the time of the refusal.
The employer is then required to take steps to investigate the complaint and address the employee’s concern – this can include things such as implementing appropriate and government-recommended health policies (including encouraging social distancing, setting up hand sanitizer stations around the worksite, reducing in-person meetings, etc). It may also include providing alternatives where possible, such as the option to work from home. If the employee is especially vulnerable to COVID-19 by reason of age or pre-existing illness, further accommodation may also be required (including not requiring the employee to come into the office at all).
It is important to note that even if a business has been classified as “essential” by the Province of Alberta (see the list of essential businesses here), the employer’s obligation to provide a safe work site and to address employees’ reasonable safety concerns still exist. As such, each employer must continue to assess the necessary and reasonable steps they can take to mitigate risks associated with COVID-19 for their employees.
Any employee refusing work properly under Section 31 of the Act is entitled to have the same wages and benefits that he or she would have received had the worker continued to work. Employers ought to be careful not to subject a refusing employee to any discriminatory action, which could include, among other things, termination, layoff, suspension, demotion, transfers, or reduction in hours of work. This applies even if the employee is incorrect about the existence of the hazard, so long as they had reasonable grounds to believe that it existed.
If you’re not sure whether you or your employee can refuse work, or what consequences might arise because of a refusal, we encourage you to consult with a lawyer who can assess your inquiry on a fact-specific basis.
For more information on these topics or any other matters please contact one of the below lawyers from Bryan & Company LLP or access our Employment Law group here and it would be our pleasure to assist.
|CARTER D. GRESCHNER
|CHAYLENE L. GALLAGHER
This article was prepared with the assistance of:
|MEGAN S. HOGENDOORN