Work Refusals and Covid-19: Risky Business Indeed
Covid-19 has put workers and employers in a difficult position. Many have lost their jobs, and others find themselves trying to work remotely for the first time, surrounded by their school-aged children. But what about those still going in to work? Some workers are feeling afraid and uncomfortable, watching those around them be told to stay home, while they go out into a minefield.
What happens if a worker refuses to go to work? For this blog, we will assume that the employer has done everything right in terms of complying with WorkSafe BC and Public Health Authority recommendations. But the worker still feels uncomfortable. What happens if that worker refuses to work or walks away from their job?
Refusal to work can be a quit
Repeating our assumption that the employer is complying with all government recommendations and requirements, fear or discomfort alone does not give the worker the right to refuse to come to work. If an employer is willing to continue employment, but the worker refuses to work out of fear or discomfort, then they may be in effect quitting their job. This would mean employment and all benefits come to an end, with no termination or severance pay.
There would be exceptions to this if the worker falls within the new protected leaves under the BC Employment Standards Act. For example, if they are uncomfortable coming to work, AND they have minor school-aged kids at home that need care. In this case the requirement to care for children would be the basis for an unpaid leave from work, and the worker may be eligible for CERB.
CERB can be lost due to work refusal
Today, applications for CERB opened, to the great relief of many. Under the current legilsation, Canada Emergency Response Benefit (“CERB”) is payable to workers who have “ceased working for reasons related to COVID-19” for at least 14 straight days.
When considering refusing to work due to fear or discomfort, workers need to understand that CERB may be denied or clawed back. The legislation specifically states that quitting a job voluntarily does not meet the requirement of “ceased working for reasons related to COVID-19.”
EI can be lost due to work refusal
For many workers, Employment Insurance (“EI”) would be available if they were laid off due to lack of work or went on a medical leave. EI is generally not available to a worker who quits. The exception to this is a worker may quit and still get EI if they are able to prove that they had “just cause” to leave that job. What is “just cause” to quit your job and still get EI? To paraphrase a Federal Court of Appeal judge, just cause means convincing the Canadian taxpayers that they should pay you money for your decision to become jobless. That sounds like a high bar to meet, but it is not impossible.
Under EI law, you may have “just cause” to quit your job if you can prove two things:
- Your workplace was a danger to your health and/or safety; and
- You had exhausted all reasonable avenues before quitting.
A work refusal due to fear and discomfort, rather than an objective safety risk, is not likely to be “just cause.”
Work refusals are risky for workers and employers
The stakes are very high for workers and business for work refusals. We recommend that any worker considering a refusal to work get good legal advice before taking that step. A loss of access to 16 weeks of CERB is $8,000, not to mention loss of potential severance pay.
For employers faced with a work refusal, there is also risk. With the changing workplace safety requirements, it can be hard to know if you are compliant. Any negative treatment of a worker after they make a safety complaint could be a Discriminatory Action, and get you in hot water with WorkSafe BC. If you are aware that the worker could be entitled to a protected leave and ignore that, there is risk of an Employment Standards complaint.
Need help navigating work refusals? We advise both workers and employers with proactive advice to avoid large losses down the road.
This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.
Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].