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COVID-19 – Can an Employee Refuse to Work because of COVID-19?

Like in most employment law contexts, the answer depends. Some employees are unable to refuse to work on health and safety grounds like a pandemic such as COVID-19 – these employees include firefighters, police, hospital and long-term health care workers as their employment is inherently dangerous and required to deal with such risk.

Other employees are entitled to refuse to work if there is a bona-fide unsafe work condition that creates a health and safety risk to the employee. This is sometimes subjective and varies between different employees, whereas other employment situations may be more obvious. While the federal and provincial governments are making recommendations for social distancing and closing public forums, some employment circumstances make this impossible, even with some safeguards. Service industries may face challenges in dealing with other staff and employees who may unwittingly expose others.

Normally a refusal to work due to unsafe work conditions is dealt with through the WorkSafeBC and the Occupational Health and Safety Regulations of the Workers Compensation Act, it is reasonable to conclude that refusals to work due to a COVID-19 risk of exposure will be handled similarly.

Employers should take steps to address concerns of the employee who is refusing to work due to potential exposure, reduce risk as well as possible, and provide accommodation to the concerned employee. The employer should never force an employee to work when they subjectively feel unsafe in the work environment and employers should permit them to seek remedies available through WorkSafeBC or Employment Insurance.

Vulnerable employees or employees with compromised immune systems or chronic respiratory conditions should advise their employers of their conditions and concerns with the work environment and exposure risk. These employees may need different accommodation under the Human Rights Code as a compromised immune system or chronic condition increasing exposure related risk would be a protected ground from discrimination. Reasonable accommodation should be made to the point of undue hardship or the employer could face serious consequences through a Human Rights Code complaint for discrimination or failure to accommodate.

As always, before making a decision, it is always safest to check your position with an Employment lawyer who can guide you through the myriad of ever-changing issues surrounding COVID-19, and the unprecedented recommendations for self-quarantine, travel restrictions, and closures of non-essential businesses.

Please feel free to contact the Employment Law Group at Doak Shirreff Lawyers LLP for more information by contacting Scott Chambers at [email protected], or call 250-763-4323, or through our toll-free number at 1-800-661-4959. We can consult with you remotely as needed.