COVID-19: Can Your Employer Force You Back to Work in Ontario?

By Merovitz Potechin on Tuesday May 26, 2020.

With the Province of Ontario now into Stage 1 of its ‘Framework for Reopening’ businesses, many workers have questions about their rights as they relate working during the COVID-19 pandemic. If your employer is allowed to resume business but you do not feel safe returning to your workplace, can you refuse to work on that basis? What do you do if you have kids at home and no care options?

Refusing to work for safety reasons

Across Ontario, many employees have been filing work refusals with the Ministry of Labour due to COVID-19.

Employees will refuse work where they feel unsafe in the work environment. We normally associate refusals with a workplace that involves significant machinery. Now the risk becomes one’s fellow employees. Employers have a duty to protect the health and safety of their employees, which now includes taking measures with respect to COVID-19. Social distancing protocols are easy in some workplaces and more challenging in others. There is no one size fits all solution so both employees and employers must be mindful of this in their approach to work refusals and enhancing workplace safety.

Childcare and grounds for refusing to return to work

Employers in Ontario have an obligation to accommodate their employees for certain reasons up to the point of undue hardship. If an employee must stay home to care for their children during the pandemic, then employers should make efforts to offer flexible work arrangements if the job can be completed from home.

If the job cannot be completed from home, employees are allowed to take unpaid leave under the Employment Standards Amendment Act (Infectious Disease Emergencies) 2020.

Any employer reprisal against an employee for asserting their rights with respect to caring for a child in the current situation may be the basis of a human rights complaint and, where there is a termination, a wrongful dismissal claim.

Keep in mind that an employer may offer childcare options to accommodate an employee’s childcare needs and in this situation, the employee may have to return to work if the childcare accommodations are reasonable.

Personal protective equipment (‘PPE’)

It is possible that certain employees will have to be provided with adequate safety equipment to perform their job duties. During the COVID-19 pandemic, this may mean that your workplace must provide gloves, masks and face shields in order for the employees to carry out their job duties. As a baseline, hand sanitizer will likely always have to be on hand and enhanced cleaning procedures in place.  

If you are not provided with PPE or if you feel unsafe performing your duties, you may have grounds to seek alternative arrangements with your employer.

If you are immunocompromised, it is always worth seeking a doctor’s note as well to provide your employer with evidence for why it might be unsafe to return to work.

Finally, make sure to always talk to your employer directly to discuss your concerns regarding protective equipment, workplace safety and any possible arrangements that can be made due to COVID-19.

If you are uncertain about whether you must return to work or face being dismissed, contact the employment lawyers at Merovitz Potechin LLP to discuss your specific situation.