Employers have the right to call workers back into the office, but employees have rights too – like the right to a healthy work environment, the right to refuse unsafe work, and the right to reasonable accommodation.
Whether you support or oppose returning to office, or are facing challenges that require accommodation, the employer has an obligation to ensure employees have everything they need to do their job and to do it safely.
If you want a refresher on those rights – or to know what the next steps are if those rights are being violated – read on. If you have health & safety concerns, need support to file a complaint or an accommodation request, please fill out our return-to-office help form and a PIPSC Employment Relations Officer will be in touch.
Health and Safety
The right to refuse unsafe work
Employees may refuse to perform work or a task that can jeopardize their health, safety or integrity. The right to refuse is based on the definition of danger within the Canada Labour Code. An employee can refuse work if they believe that the situation is unsafe to either themself or their co-workers.
A workplace situation can feel unsafe for a variety of reasons:
As per the Canada Labour Code, “employers are required to ensure that the workplace, workspaces and procedures meet prescribed ergonomic standards”.
The employer is also responsible to ensure that equipment and tools used by employees in the course of their employment meet prescribed health, safety and ergonomic standards. When these standards are not being met, it creates an Ergonomic Hazard – which poses the risk of injury to an employee.
Hazards include things like improperly designed workstations. For example: working from a kitchen chair rather than a desk chair.
- An employee may request an ergonomic assessment to identify and prevent ergonomic-related hazards associated with jobs, tasks, and the work environment to help prevent the development of a workplace injury. The request should be made to your manager. A medical note is not required for the ergonomic assessment to take place.
- If the request is denied or ignored, the employee should fill out our help form and a PIPSC Employment Relations Officer will be in touch.
Risk of exposure to the COVID virus
While the pandemic has brought about legitimate concerns for employees’ health, fear of potential exposure alone is not justification for refusing work.
There must be a link between COVID-19 and the employee’s reasonable belief that they are at risk for injury or illness, including situations where the employer has not taken measures to protect employee health and minimize the potential danger.
- Prior to invoking your work refusal, request information from your manager regarding the mitigation measures in place to ensure your health and safety in the workplace.
- If you still have concerns and feel unsafe regarding the preventative measures in place, you must inform your manager as soon as possible so that they can investigate your concerns further.
- If the situation remains unresolved, you can report your concerns to the Local Health and Safety Committee. It is the employer’s responsibility for ensuring the names of the Committee members are posted and available to employees.
Invoking your right to refuse unsafe work
If you wish to exercise the right to refuse dangerous work, you must be at work or entering the workplace. You will stop working and continue to receive wages and benefits during the refusal process. The employer, at this point, cannot assign someone else to do the work that you have refused to do. An employer can only do this after the matter has been fully investigated internally and has been properly referred to the Minister of Labour.
When an employee believes that a work refusal should be initiated, then:
- the employee must report to their supervisor that they’re refusing to work and state why they believe the situation is unsafe
- the employee, supervisor, and a Health and Safety Committee member or employee representative will investigate
- the employee returns to work if the problem is resolved with a mutual agreement
- if the problem is not resolved, a government Health and Safety Inspector is called to investigate and gives a decision in writing.
For specific assistance relating to health and safety requests, please fill out our help form and a PIPSC Employment Relations Officer will be in touch.
Duty to Accommodate
The right to [reasonable] accommodation
Human rights legislation prohibits discrimination based on grounds such as family status and/or disability. The employer has a duty to implement whatever measures necessary to allow its employees to work to the best of their ability.
Accommodation requests are addressed on a case by case basis.
For specific assistance relating to accommodation requests, please fill out our help form and an Employment Relations Officer will be in touch.
The employer has a legal duty to accommodate employees with a disability or illness that prevents them from returning to the office safely or that makes them vulnerable to COVID-19, up to the point of undue hardship. This disability does not need to be related to the context of Covid-19.
Employees need to disclose their functional limitations to the employer to request an accommodation. Working from home may be the appropriate accommodation depending on those functional limitations. This may be to address immunocompromised or immunosuppressed employees facing a return to office or to accommodate an employee who requires specific ergonomic equipment to perform their work and temporarily does not have access to this equipment in the office.
If working from home is not possible, attempts should be made to explore the possibility of other accommodations, possibly including paid Code 699 “Other Leave with Pay”. Unpaid leave should always be the last option.
Family Status - Child and Elderly Care
The employer has a legal duty to accommodate employees whose care responsibilities impact their ability to return to the office.
Employers must provide accommodations to allow employees who are responsible for a child, to keep working if childcare options are unavailable.
If an employee has established their need for accommodation, they should:
- communicate their legal responsibility and need to care for a child
- make a real and demonstrated attempt to obtain childcare
- demonstrate that the employer’s return to office direction is interfering in a more than trivial or insubstantial manner with their ability to fulfill their duty.
Then, the employer has an obligation to explore accommodation options, such as working from home, a flexible work arrangement, etc.
The obligation to provide care to elderly parents is also covered by family status protections. Like with childcare, the employee has to demonstrate they have tried to find alternative care in order to demonstrate a need for accommodation.
If an employee lives with a sick family member or cares for family members who are at high risk if they contract COVID-19 (e.g. elderly, immunosuppressed, immunocompromised, or medically vulnerable), the right to accommodation may be extended to the employee required to provide such care.