Many of you have reached out to us with concerns about the return-to-office plans while the country is experiencing another COVID-19 wave. CAPE has prepared a brief outline of your rights, how you can inquire about preventative measures and the actions you can take with your employer.
Health and safety concerns related to return-to-office plans during COVID-19
Know your rights
If you notice a situation related to your employer’s return-to-office plans that you believe is a danger to yourself, or that could be likely to result in an accident, injury, or illness, we advise you to consider the following options:
Inform yourself of the preventative measures in place
Ask your manager for a copy of the preventative measures that have been put into place to ensure the health and safety of all employees in the workplace. Ask questions if any of the information is unclear.
Report your concerns to your manager
If, after reviewing the preventative measures, you feel unsafe, share your concerns with your manager so that the matter can be looked into. Ensure you follow-up to obtain a response.
Report your concern to the Local Health and Safety Committee
In addition to the above, you can report your concerns to the Local Health and Safety Committee. Your manager is responsible for ensuring the names of the Committee members are posted and available to employees.
Hazardous Occurrence Report
If you have contracted COVID-19 as a result of being exposed in the workplace, complete a Hazardous Occurrence Investigation Report (Form 874) and submit it to your manager. The Employer is obligated under the Health and Safety provisions under the Canada Labour Code to investigate the issue to ensure remedial action is taken to prevent a reoccurrence. Request for accommodation
If you require accommodation based on a protected ground such as a disability (e.g., if you are immunocompromised), or family status (e.g., if you are living with an individual who is immunocompromised), you need to make a request for accommodation.
You always have the right, under the Canada Labour Code, to refuse to perform work that constitutes a danger to yourself or to another employee. The procedure for exercising this right is as follows:
- The employee must, without delay, report the unsafe work to the employer and indicate their intention to exercise their right under the Code to refuse to perform the work. Several employees may make reports concerning the same situation and designate one employee to represent them.
- The employer is then obligated to investigate the work in question, without delay, in the presence of the employee or a person designated to represent the employee.
- After its investigation, the employer shall prepare a report including the results of its investigation. The employer may conclude either:
- that the employer recognizes the existence of the danger, in which case the employer shall take appropriate remediation action;
- that a danger exists, but that one of the exceptions to the refusal to work under the Code applies (which is unlikely in the current situation involving the interpreters); or
- there is no danger.
- . If the employer concludes that remedial action is not necessary, the employer shall notify the health and safety workplace committee. If the employee disagrees with the employer's decision, the employee may continue to refuse to work.
- The workplace committee shall designate two of its members, one representing the employees and one representing the employer, to conduct their own investigation and present the results and, if appropriate, their recommendations to the employer. The employer may then decide either:
- that a danger exists and take appropriate action to protect the employees;
- that a danger exists but one of the exceptions to refusal to work under the Code applies; or
- that no danger exists.
- If the reporting employee still disagrees with the employer's decision, the employee shall notify the employer that he or she maintains the refusal, and the employer is obligated to notify the Minister of Labour and the workplace committee.
- Subsequently, the Minister shall conduct an investigation unless the Minister determines that the complaint is trivial, frivolous, vexatious, or made in bad faith.
- Until the matter is referred to the Minister, the employer is not permitted to have someone else perform the work that an employee has refused to perform. However, once the matter is referred to the Minister, the employer may assign another employee to perform the refused work, provided that the other employee:
- is qualified to perform the work;
- is advised of the continued refusal and the reasons for it; and
- will not be put in danger.
- At the conclusion of the investigation, the Minister shall give written notification of one of the following decisions to the employer and the employee:
- that a danger exists, in which case the Minister shall issue the directions as the Minister considers appropriate and the employee may continue to refuse to work until the directions are complied with;
- that a danger exists, but one of the exceptions to the refusal to work under the Code applies (which is unlikely in the current situation involving the interpreters); or
- that a danger does not exist, in which case the employee is no longer entitled to refuse to work.
- The employee, the employer or the union have the right to appeal the Minister's decision.
- The employer has an obligation under the Code to pay an employee who exercises the right to refuse to perform hazardous work in good faith the compensation for the period during which the employee would have worked if the employee had not exercised the right to refuse the work.
- The Code also does not authorize an employer to discipline an employee for exercising his or her right to refuse to perform hazardous work, except in cases where the employee has deliberately exercised that right in an abusive manner.
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