CHAUDHRI: Are employers doing enough to make workplaces safe as employees return?
Despite recent progress, COVID has not loosened its grip on Ontario, as new positive cases have returned to the triple digits over the last several weeks.
Many employees question if returning to work will increase their chances of contracting COVID.
This concern is relatively universal; anecdotally, many clients across all industries have raised concerns about having to leave home to return to work or take public transit. A resounding number of employees are reluctant to return to work; harbouring serious doubts about workplace safety.
I’ve received a number of questions about workplace safety including the following:
I work as a truckdriver. Our business hasn’t shut down as it has been deemed essential. The places we deliver to overall are decent as far as COVID regulations go.
My problem is our dispatch office and the support staff. They don’t wear masks anywhere. I really don’t care in a private office, but we have many common areas. Almost all do not wear any masks at all. We even had an employee who works remotely, bring their newborn baby in to show off and pass around.
The boss never wears a mask and most office employees have opinions that this pandemic is overblown and all this is a hoax. I would like to have a safer work environment, for myself and others who do care.
What should I do?
Every employee should start by reporting their concerns to their supervisors. As always, document your concerns in an email to your supervisor and raise the issue with your company’s workplace safety committee.
Raising concerns in a casual manner at the water cooler or over lunch likely will not prompt a call to action and may later be denied. Emails should contain specific examples (like in the account of our reader above) that mention specific incidents, individuals involved and the conduct that should be corrected. Concerns, however, can’t be based on anxiety alone. Legitimate concerns include availability of PPE and exposure to co-workers showing respiratory symptoms.
Employers carry the heavy responsibility of providing safe working environments during COVID. While Ontario’s Occupational Health and Safety Act is still encouraging employers to allow employees to work from home where possible, where employers are reopening they are required to perform a safety assessment of the workspace.
If your complaints fall on deaf ears you can escalate your concerns by filing a workplace health and safety complaint online here: https://www.ontario.ca/page/filing-workplace-health-and-safety-complaint . Depending on the complaint a Ministry inspector may conduct a field visit at your employer. We have worked with many employers that have been subject to failed inspections. Most, if not all, came back with safe workplaces and employees were unable to refuse to return to work on those grounds.
While you are protected under the OHSA to refuse work that you believe will endanger your health and safety, you must promptly report those circumstances to your employer. Failure to report and you may be deemed to have abandoned your employment.
On to your questions from this week:
I am a 45-year old permanent part time customer service worker working for an airline. I have worked 16 full years with the same airline. To date I have managed to elude being laid off but many of my coworkers have been due to COVID-19. I am worried that my airline could lay me off or terminate me outright due to COVID-19. I am not unionized and would like to know if I was terminated what max severance could I be entitled to?
If you do not have a contract, the range could be 12-14 months for you. As the airline industry has been hit hard it may be difficult to re-employ in the same industry, which could extend your damages. If you are laid off or suffer a reduction in hours, I suggest you get legal advice.
I have recalled an employee but she has refused to return to work saying that her mother is ill and that she is on a job protected Infectious Disease Emergency Leave (IDEL) and that she does not have to return to work. Is that true?
An employee can only refuse a recall in certain circumstances due to IDEL and the complete list can be found here: https://www.ontario.ca/document/your-guide-employment-standards-act-0/infectious-disease-emergency-leave. With respect to an ill family member, the employee is only protected if he or she is providing care to a family member related to a designated infectious disease (i.e. COVID). Caring for an immune compromised family member likely will not pass the test to refuse a return to work.
Send me your questions at schaudhri@levittllp.com and your question may be featured in a future column. Until then, stay safe.
— Sunira Chaudhri is a partner at Levitt LLP, Labour & Employment Lawyers