Jane Letton
We answer some of the most common legal questions arising from the global pandemic.
Covid-19 has dramatically changed the workplace, with many nurses practising in new and challenging conditions. This column addresses common work-related legal questions arising from the pandemic. It is for legal information only, and is not legal advice. Members who are enrolled in RNAO’s Legal Assistance Program (LAP) should contact Mara Haase, program administrator, if they think they need legal advice on any of the issues addressed below.
Q: My workplace does not have sufficient personal protective equipment (PPE) or is not providing it in accordance with the chief medical officer of health’s directives. Can I refuse to work?
A: Deciding to initiate a work refusal in the face of inadequate PPE is one of the most challenging decisions a nurse may face. While the College of Nurses of Ontario (CNO) permits nurses to refuse assignments they believe will place them or their clients at an “unacceptable level of risk,” the Occupational Health and Safety Act (OHSA) limits a health-care worker’s right to refuse work to situations where: (1) the work in question is not “inherent” in their work or a “normal condition” of their employment; and (2) the work refusal would not directly endanger another person’s health or safety. If a nurse does not have access to appropriate PPE, this is not an “inherent” or “normal condition” of their employment and so there may be a right to refuse work under OHSA. It will depend on whether it would directly endanger another person’s health or safety. A nurse must consider all circumstances before initiating a work refusal.
It is contrary to OHSA to reprise against a worker for seeking the protection of the Act, such as through discipline or termination. But the employee who has been subject to a reprisal must either grieve (if unionized) or file a complaint with the Ontario Labour Relations Board. Depending on the nurse’s individual economic and workplace circumstances, this may be too risky. Unionized workers considering a formal work refusal should seek the assistance of their union
If an outright refusal is not your best course of action, consider workplace advocacy – either individually, or better yet, collectively. Unions have been successful in obtaining orders from the courts, the labour board and arbitrators mandating that employers comply with the chief medical officer of health’s directives by providing nurses with the PPE required. Employees can advocate that the employer is required, by law, to follow these directives.
If your workplace does not have sufficient PPE, please contact RNAO CEO Doris Grinspun (dgrinspun@RNAO.ca). RNAO is committed to advocating for safe workplaces. It has done so successfully, and is also tracking this issue.
Q: I (or someone in my care) have an underlying health condition. Can I refuse an assignment that requires I work with COVID-19 or suspected COVID-19 patients?
A: The Ontario Human Rights Commission’s policy on COVID-19 advises that: “Employers should be sensitive to any particular vulnerability an employee may have (for example, if they have a compromised immune system).” Therefore, if you have, or care for someone with, an underlying condition, your employer has an obligation to accommodate you to a less vulnerable position. When discussing your request for accommodation with your employer, you do not need to disclose anyone’s specific health condition, but rather the limitations and restrictions. For example, if you, or someone you care for, have heart disease, you can advise that you/they have a health condition that increases the risk of complications from COVID-19. This applies to any workplace where you are redeployed, as well as your home position.
Q: I’ve been working reduced hours and/or my employer reduced my rate of pay. Is this constructive dismissal?
A: Likely yes, but the traditional response of quitting and claiming constructive dismissal is very challenging, particularly in the current economic climate. If you’re in this situation, you can advise your employer that you are giving notice, and that you do not accept the changed terms of employment; however, you will continue to work. Before you take any steps, consult with a lawyer.
Q: I’ve been recalled to work and my employer is requiring that I provide test results demonstrating I do not have COVID-19, or is requiring a temperature check before I start each shift. Is this legal?
A: COVID-19 is contagious and has asymptomatic transmission. Your employer has an obligation to protect the health and safety of workers/clients. Therefore, this is a reasonable intrusion into one’s private health information. Your employer is limited to requiring only the information to ensure the safety of yourself and others. In this case, that includes a test to confirm your COVID-19 status. If you have COVID-19, or are required to quarantine/self-isolate, you are entitled to leave without pay (and apply for the Canada Emergency Response Benefit), or leave with sick pay.