The COVID-19 pandemic raises significant workplace issues. One of them is whether an employee may lawfully refuse to work because they believe that doing so would endanger their health or safety.

Circumstances are changing rapidly. On March 22, 2020, Nova Scotia declared a State of Emergency under the Emergency Management Act, and the Chief Medical Officer made the following orders under the Health Protection Act:

  • Social gatherings of more than five people are prohibited.
  • Any workplace or business that is not deemed essential can remain open as long as a two-metre or six-foot distance can be maintained. Workspaces must also be cleaned and disinfected at a minimum of twice daily or as required and employees follow proper hygiene.

The Nova Scotia Occupational Health and Safety Act (OHSA) entitles employees to refuse work if they have “reasonable grounds for believing that the act is likely to endanger the employee’s health or safety or the health or safety of any other person.”

Whether the employee has reasonable grounds for believing work is likely to endanger their health or the health of any other person will depend on their particular circumstances, including but not limited to:

  • whether there have been any suspected or confirmed cases of the virus at the workplace;
  • whether anyone in the workplace has travelled internationally within the previous 14 days;
  • the employee’s age;
  • whether the employee has any underlying health conditions that make them more vulnerable;
  • if the employee is pregnant or breastfeeding; and
  • if the employer has provided equipment or imposed policies to protect the employee.

The Nova Scotia government has published a fact sheet on cleaning and disinfecting businesses. These measures will likely be important in determining whether an employee has reasonable grounds for believing that their health or safety are at risk at work.

A general fear of contracting the virus within the workplace, without further reasons, will not likely constitute reasonable grounds for a refusal. Nevertheless, the situation is changing rapidly. Employers and employees should pay close attention to government directives.

Additionally, the right to refuse cannot be exercised under certain circumstances, most notably (1) where the refusal places the life, health or safety of another person in danger or (2) where the danger is inherent to the employee’s work.

OHSA sets out a procedure whereby employees can exercise their right to refuse work. The process can be summarized as follows:

  1. The employee must immediately notify their supervisor or employer the reason for their refusal.
  2. If the matter is not resolved to the employee’s satisfaction, the employee must then report it to their Joint Occupational Health and Safety Committee or their worker health and safety representative.
  3. If the matter is not remedied to the employee’s satisfaction, the employee must then report to the Occupational Health and Safety Division of the Department of Labour and Advanced Education.

If the Joint Occupational Health and Safety Committee has unanimously advised the employee to return to work, the employee must do so or risk not being paid, even if they appeal to the Occupational Health and Safety Division.

An employer may reassign an employee who has refused unsafe work to alternative duties during the period of their work refusal, subject to any relevant restrictions in the applicable employment contract.

An employee who has concerns about workplace safety should bring those concerns to their supervisor or joint occupational health and safety committee as soon as possible.

If you have questions about an employee’s right to refuse work under the Nova Scotia Occupational Health and Safety Act, contact Pink Larkin at (902) 423-7777 or 1-800-565-4529, or email [email protected].

Pink Larkin is offering free telephone consultations to employees who have lost their job due to the COVID-19 crisis.

* The following information is not legal advice.  The answers to these questions will vary, depending on the circumstances of each case. Consult legal counsel for information and advice relevant to your individual circumstances.