Canadian Employment lawyer on work refusals due to COVID-19

A headshot of Toronto employment lawyer Lior Samfiru next to the logos for Samfiru Tumarkin LLP and radio station 640 Toronto.

Interview Summary

Some teachers across Ontario have refused to work citing unsafe work conditions as the Omicron variant continues to drive COVID-19 cases. While teachers across the province are largely unionized, what can other non-union employees do if they feel unsafe returning to work? Are employers within their rights to force employees to return to the workplace?

An Ottawa employment lawyer at Samfiru Tumarkin LLP joined Jeff McArthur on Global News Radio 640 Toronto to answer these questions and more.

Interview Notes

What are the concerns being expressed by teachers who refuse to return to work?

Teachers who believe their workplace is still unsafe have expressed concerns regarding a lack of social distancing in classrooms, as well as proper masks and adequate ventilation systems. Many teachers who have engaged in work refusals have stated that students do not have adequate masks or that younger students do not wear proper masks, particularly at the lunch hour.

What constitutes an unsafe work environment according to employment laws?

Legally, under the Occupational Health and Safety Act, an employee that engages in a work refusal is able to file a complaint with the Ministry of Labour if they feel their workplace is unsafe. Employees have a right to refuse to work if they believe their workplace and employer have not taken the necessary steps. The threshold for a safe work environment is not perfect but rather the workplace has to implement reasonable measures in order to facilitate a healthy and safe workplace.

Who ultimately decides whether or not a workplace is safe?

In Ontario, the Ministry of Labour decides after an investigation whether or not a workplace is safe. Workplaces that have not officially filed a work refusal with the ministry are able to internally determine the safety of the workplace and must take steps to resolve the complaints. Employees who feel their concerns are not being addressed can escalate the situation to the ministry.

Why is Pizza Hut facing a class-action lawsuit?

The Pizza Hut class action lawsuit has been launched due to a misclassification of its drivers as independent contractors when they are in fact employees. The class action aims to classify the drivers as employees so that they can receive the same rights and protections as employees. This lawsuit concerns the same issues facing Uber drivers and their own class-action lawsuit. Learn more about severance pay for Pizza Hut employees.

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