What Is “Absolute Liability”? Absolute liability is the obligation of an insurer to indemnify an innocent third party who was injured by an insured, while the insured was in violation of the insurance policy. Under the absolute liability provision of the Insurance Act, RSNB 1973, c I-12, [the ‘Act’], the insurer may deny coverage to […]read more
Employee Refusals to Work: Employer Rights and Obligations under OHS Legislation
The number of COVID-19 cases continues to rise, and statistics flooding news and social media either are, or may be, contributing to health and safety concerns and apprehension on the part of employees of open and operating workplaces. For businesses whose operations have continued, ensuring that employees continue to show up for work is critical, yet for some, this is proving to be increasingly challenging.
We have responded to a number of inquiries from clients seeking advice on employee and employer rights with respect to refusals to work.
Refusal to Work
The obligation on an employer to provide a safe work environment is paired with a right by employees to refuse unsafe work where an employee has reasonable grounds to believe their health and safety is likely to be endangered. Occupational health and safety legislation in all Atlantic Canadian provinces addresses the steps to be taken where such a refusal is made so that the employee can safely return to work. Employees who refuse unsafe work may be reassigned, although, given the nature of possible Coronavirus-related complaints, it is unlikely an employee could readily relocate to another position within the same worksite and not be exposed to same risks initially complained of. Remote working, in certain circumstances, may be possible and appropriate.
Employee rights are not absolute and an employer cannot be forced to yield to an employee’s irrational, subjective or idiosyncratic notions of health. The right to refuse work will only arise where a reasonable belief that the employee’s health is in danger exists. The mere fear of possibly contracting COVID-19 is not sufficient, in and of itself, to justify a refusal to work. Rather, the right to refuse typically requires employees to point to a specific reason why the work is unsafe. Regardless, when in receipt of a work refusal, employers should assess the complaint at face value and consider whether the work is unsafe. Where employers are permitted to remain open and are following guidelines, directions, and orders issued by government officials, they will likely be justified in taking the position that the work is not unsafe.
Protecting employees and the public
Many retail businesses have taken significant measures to protect the public and employees. Examples include: the installation of hand washing and sanitization stations; the number of customers being granted access to the premises at any time being limited; physical barriers between cashiers and customers have been installed; restocking of inventory occurring while the premises are closed; business operation hours being limited; staffing numbers reduced; social distancing measures such as floor markings and required cart usage have been instituted; staff being required to wear PPE, and many business have adopted or enhanced contact-free telephone or on-line sales.
In addition to encouraging remote work, where possible, some office-based employers are requiring employees to enter and exit their offices through designated doorways and to follow a specific pathway when walking through the office space in order to abide by social-distancing rules.
The above are merely provided as examples. Each workplace is unique, requiring an individualized response to health and safety obligations during this time. As set out below, exercising and responding to work refusals, while very similar, has some variance in each Atlantic province. Further, in addition to legal considerations, employers may also wish to consider the implications of decisions during this time on employee morale and retention, as well as the employer’s reputation in the community.
For a comprehensive look at the steps required to refuse work in each province, see
Communicable Disease Emergency Leave
Under recent amendments to Newfoundland and Labrador’s Labour Standards Act (“LSA”) which created Part VII.8 , employees are entitled to communicable disease emergency leave for reasons enumerated under the LSA. Employers are not permitted to require that the employee provide a medical note from a medical practitioner or nurse practitioner if they avail of this leave. Employees are unable to avail of this leave for reasons such as stress or fear even if those concerns are related to the COVID-19 pandemic. Instead, employees would be entitled to seven days of unpaid sick leave and would still be required to obtain a medical note if they have been absent work for a period of 3 or more consecutive days.
Employers may encounter employees asserting an underlying medical condition that puts their health and safety at a greater risk were they to contract COVID-19. In New Brunswick and Prince Edward Island, these situations can be dealt with in a similar manner as any request for accommodation; that is, the employee should be asked to provide medical documentation with the following information:
- a full and complete description of the medical condition(s) from which they are suffering;
- confirmation as to what, if any, medical restrictions apply;
- confirmation as to whether the medical condition adversely affects their ability to perform their job duties;
- confirmation as to whether a return to work would pose a health and safety risk to the employee that is significantly different than the risk to the public at large.
In Newfoundland and Labrador, except for the express reasons set out in the recent amendments to the LSA, medical notes may be treated the same as they were prior to COVID-19. That is, employers are entitled to more information than simply a prescription pad note stating that an employee will be out of the workplace for medical reasons for a specific number of days. This is particularly the case where an absence from work is indicated in excess of a week. It should be noted, however, that employers are not entitled to a diagnosis. Instead they are entitled to know:
- the nature of the medical issue (i.e. physical or mental);
- what functional limitations exist;
- the prognosis for a return to work; and,
- whether the medical issue is temporary or permanent.
In Nova Scotia, employers are currently being directed not to request medical notes for employees who need to be off out of concern they have contracted COVID-19. However, where an employee is seeking accommodation on the basis of underlying health issues, employers will generally be entitled to the same level of information as outlined for Newfoundland and Labrador above.
It is recommended that any correspondence from an employer to an employee’s physician be directed through the employee. Employers should not communicate directly with physicians except where the employer retains its own in-house physician and the consent of the employee has been obtained prior to the communication. We would be pleased to assist in carefully drafting communication to send to the employee and the employee’s physician seeking further information.
At Cox & Palmer we can provide advice and guidance in dealing with employee refusals to work, with compliance with guidance and orders issued by Occupational Health and Safety Officials, and maintaining workplace operations in this challenging environment.
 NB – Occupational Health and Safety Act, SNB 1983, c O-0.2, ss. 19 – 23; NL – Occupational Health and Safety Act, RSNL1990 c. O-3, section 45; NS – Occupational Health and Safety Act, SNS 1996, c 7, s. 43; PEI – Occupational Health and Safety Act, RSPEI 1988, c O-1.01, ss. 28 – 31.
 Labour Standards Act, RSNL, c. L-2, Part VII.8