Introduction
The current COVID-19 pandemic is having an unprecedented impact on workers, unions, and our communities at large. Union representatives are undoubtedly receiving many questions about rights and responsibilities in relation to health, safety, employment security, income and benefits, etc. One of the many challenges is the staying up to date on relevant resources, guidelines and governmental actions.
The lawyers at Moore Edgar Lyster hope this post will be of some assistance to you in navigating these challenges.
The situation is constantly changing, and it is advisable for anyone advising workers and members to consult up to date resources from the relevant health authorities, including:
Below we offer some information regarding the general legal obligations and potential avenues of redress with respect to occupational health and safety (“OHS”) issues that may arise during this time. We also address a few factors and options relevant to compensation, including the impact of impending legislative changes.
However, anyone dealing with specific legal issues relating to COVID-19 in the workplace should seek legal advice, as various factors, including the nature of the industry, the jurisdiction in which the employer operates (federal vs. provincial), and your collective agreement, may impact on the available options and the appropriate courses of action.
Employer’s Legal Obligations Relating to Safety and COVID-19
Employers in both provincial and federal jurisdictions have a legal obligation to protect workers from exposure to work-related hazards, including any infectious and communicable diseases.
In B.C., general requirements in relation to infectious diseases are set out in WorkSafeBC’s document, Controlling Exposure: Protecting Workers From Infectious Diseases.
This guide sets out many of the relevant requirements, which include identifying infectious diseases that are, or may be, in the workplace, and developing and implementing an exposure control plan, when required.
Specific to COVID-19, WorkSafeBC is also providing online updates, setting out standards and practices for employers and workers to follow during this time.
These guidelines generally reflect those being provided by public health officials, including the BCCDC and the BCPHO.
Federally regulated employers are required to have in place a Hazard Prevention Program that sets out preventative measures to ensure workers are not exposed to conditions that could be harmful to their health or safety while at work (see Canada Occupational Health and Safety Regulations, SOR/86-304, Schedule II).
According to federal government guidelines, if there is a risk of exposure to COVID-19 to workers in the workplace, the employer must identify and assess the risk, and implement proper controls through the Hazard Prevention Program.
The federal government is also currently requesting that employers immediately advise the Federal Labour Program if there is a confirmed case of COVID-19 in the workplace.
In addition to provincial and federal OHS laws applicable to workplaces, it is important to note that, to date, the BCPHO has issued public health orders under B.C.’s Public Health Act, S.B.C. 2008, c28.
These orders are of broad application, and will apply to all workplaces and individuals in the Province. The BCPHO has authority to take enforcement action against anyone in breach of the orders.
The current orders include the Notice to People Who Have Been or Have Likely Been Exposed to SARS Co-V (CLASS Order) and Notice to Owners, Occupiers and Operators of Places at Which Large Numbers of People Gather (CLASS Order).
The former applies to all individuals who have returned to Canada on or since March 12, 2020, and limits the circumstances in which those workers can return to work. There are special requirements in place for “essential workers”.
In addition to the guidance set out in the BCPHO’s Order, the BCCDC has provided additional materials on the subject of “essential workers”.
Employers in Breach of OHS Obligations
There are several options available to anyone seeking to address an employer’s failure to comply with their obligations in relation to COVID-19.
Provincial and federal OHS laws include mechanisms by which workers, unions, and others can report any failures to comply with OHS requirements.
For provincially regulated employers in B.C., unsafe work conditions can be reported to WorkSafeBC by telephone, Monday to Friday, 8:05 a.m. to 4:30 p.m., see here.
Under the federal regime, OHS complaints can be made to a health and safety officer at the Labour Program only if parties have gone through an internal resolution process and have not successfully resolved the issue.
In light of the impact of workplace issues on the community at large, in many cases it may make sense to seek the assistance from the BCPHO or the Chief Medical Officer of the health authority in which the workplace is located. The name and contact information for each health authority’s chief medical officer can be found here.
Depending on the circumstances, it may be appropriate to file a grievance (whether individual, group or policy), and seek cease and desist or interim orders from an arbitrator at the earliest opportunity. Interim relief may be applied for which may address the issue sufficiently for the time being.
In addition to the above, you can advise your members of their right to refuse unsafe work. We address this option more fully below.
Finally, in the current climate, where the health of each individual can impact the health of all, it may be appropriate to contact the press and “go public”.
Work Refusals
All workers have the right to refuse unsafe work. However, there may be circumstances in which the right to refuse unsafe work is limited.
The right to refuse unsafe work is each individual worker’s right. Generally, a union cannot exercise the right, although the union can act as a worker’s representative through the subsequent work refusal process.
Under B.C.’s OHS laws, workers can refuse work where they have a “reasonable cause to believe” that performing the work would create an “undue hazard to the health and safety of any person”.
The Occupational Health and Safety Regulation, BC Reg 296/97 defines “hazard” as a thing or condition that may expose a person to a risk of injury or occupational disease. According to WorkSafeBC’s Occupational Health and Safety Guideline G3.12, an undue hazard is a thing or condition that may expose a worker to an “excessive or unwarranted" risk of injury or occupational disease.
The assessment of reasonable basis is based largely on objective standards. Importantly, “reasonable cause to believe” can take into account a particular worker’s underlying conditions that may make them more susceptible to suffer an illness from a condition or hazard in the workplace.
Federally, under s. 128 of the Canada Labour Code (the “Code”), workers have the right to refuse work in a place or to perform an activity, if the worker has a “reasonable cause to believe” that a condition exists in the place that constitutes a “danger” to the worker, or that performance of the activity constitutes a “danger” to the worker or to another worker. A “danger” is defined as a hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed.
The Code does limit the exercise of the work refusal in certain situations, including where the refusal puts the life, health or safety of another person directly in danger. Additionally, there are special requirements that apply to ships and aircrafts that are “in operation”.
Response to Work Refusals
Under both provincial and federal regimes, workers are required to immediately report conditions underlying the work refusal. B.C’s OHS Regulation and the federal Code set out the mandatory procedures initiated by a work refusal. These include an obligation that the employer immediately investigates, determines whether a danger or undue hazard exists, and corrects the situation.
Where the matter is not satisfactorily resolved and the work refusal continues, the parties are required to notify the provincial or federal OHS officers to investigate and determine whether any orders to remedy unsafe work conditions/hazards are necessary.
In the federal jurisdiction, workers also have the option of seeking redress through any parallel process for work refusals set out in a collective agreement. Importantly, the worker exercising the right to refuse unsafe work must inform the employer whether the worker intends to exercise recourse under the agreement or the Code. The selection of recourse is irrevocable unless the employer and employee agree otherwise.
In the context of COVID-19, it is arguable that any employer response to a work refusal ought to be consistent with guidelines issued by the federal and provincial health authorities, including the BCPHO’s orders noted above.
Compensation, Sick Time, and Other Relevant Benefits
Sick Leave and Other Benefit Provisions
Many collective agreements contain sick leave entitlements, along with entitlements to other leaves, including to care for ill family members.
While those ought to apply as usual, there has been a recognition that there may be a need to relax many of the regular requirements or processes that often accompany these entitlements. For example, in B.C., employers currently are not permitted to request sick notes from any workers who have symptoms and are self-isolating in accordance with the current public health guidelines.
If the employer provides sick benefits, including short-term disability, through an insurer, it is arguable that the insurer is required to provide the benefit without doctor’s information, at least in the current circumstances, which include concerns about the overall capacity of the health care system.
To the extent that a collective agreement does not contain any paid sick days it will be important to keep an eye on the impending changes to B.C.’s employment standards legislation, which will apply to all workers in the provincial jurisdiction.
Should BC, or the Federal Government, legislate paid sick leave, employers who are not required to provide the benefit under a collective agreement may nonetheless be bound by the new legislation. This is because it is generally the case that collective agreement entitlements are required to “meet or exceed” the statutory minimums. However, much will depend on the nature of any statutory changes. We will do our best to keep you informed about relevant legislative and regulatory changes.
It is also worth noting that both provincial and federal employment standards legislation has undergone significant amendments, including the introduction of new or improved benefits in the last year or so, including with respect to compassionate care leave, personal leave, and domestic or sexual violence leave. It may be that your members may already be entitled to benefits beyond those set out in the collective agreement. However, the comparison of benefits between statutes and collective agreements can be tricky and will depend on the nature of the benefit and whether the provincial or federal legislation applies.
WCB Coverage
In addition to the above, workers who contract COVID-19 through work-related exposure may have access to workers’ compensation benefits. In those circumstances, the worker will want to contact WorkSafeBC as soon as possible to initiate the claim.
This is an important option to keep in mind because WCB lost wage benefits are often more than is provided by insurance benefits. Also, WCB benefits may be claimed and received even where the worker loses their job.
With every day, we see how the COVID-19 pandemic is changing, and with it the responses of government, health authorities and employers. We hope you have found the information in this post helpful in understanding and representing your members’ rights in these challenging circumstances.
This post is intended as general legal information. Should you or your members require legal advice, we urge you to talk to a lawyer.
Moore Edgar Lyster is here to assist you and your members. Should you require legal advice please do not hesitate to contact us by clicking the name of one of our lawyers below, or sending a general request for advice through our contact form.