Work Refusals and Covid-19: Risky Business Indeed

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].

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Take this job and shove it

New Year, New Job - An Employment Law Perspective

Resolve to quit this year? I have advised many employees who are in a bad work situation, or have found a better job or business opportunity, and are ready to resign. Before you throw in the towel, here are a few key legal issues to consider:

Could this be a constructive dismissal?

If you are quitting, not by choice, but because of fundamental changes to your job to which you did not agree, this could be a constructive dismissal. If you have no choice but to quit because of a hostile or intolerable work environment, this could be a constructive dismissal. The threshold is pretty high - the changes have to be significant. It can be hard to prove that an environment is so hostile that you had to quit.

If it is a constructive dismissal, even though you are quitting, you might be entitled to severance pay. If you think a constructive dismissal is forcing you to quit, I recommend that you get legal advice before you hand in your resignation letter.

How much notice do I need to give?

I get this question a lot. The first thing I do is look at the written employment contract (if there is one). Some employment contracts specify the amount of resignation notice that the employee has to provide. If there is nothing in the contract, then I look at employer policies (if there are any). If there is a contract or employer policy that states the amount of resignation notice they expect, it is usually safe for an employee to follow that.

If there is no contract or policy, I explore with my client what is reasonable in the circumstances of their job. How difficult will it be for the employer to transition their work? 2 weeks notice is enough in many situations, but in some cases, less or more notice might be appropriate. It is also worth considering whether there might be some strategic advantage to providing a longer period of notice.

Can I take customers or company information with me?

This is a hot button issue for employers. If you are thinking about secretly copying or taking information, the fact that you are hiding it is a sign that it is probably a bad idea. You owe your current employer a duty of loyalty while you are still employed, and you may have duties that extend even after you have left. Some employment contracts contain "non-solicitation" or "non-competition" restrictions that limit what you can do for a period of time after you leave. These may or may not be legally enforceable. If you have this type of contract, or if you plan to take customers or company information, I strongly recommend getting legal advice about your rights and obligations, and the potential consequences.

Timing is important

There is rarely a perfect time to make a change, but it is important to consider what is on the horizon. Is there a bonus payment coming up? If it is a matter of a short delay, you may be better to wait until you have that money in your account before you resign.

Leaving on a good note

While the "take this job and shove it" approach can be appealing, it is not one that I recommend. It is always better to leave on a good note if you can. If you are feeling emotional, which is normal, it can help to put together a written resignation letter. Email is fine, but you should take time to carefully consider the wording and message that you are sending.

Or ignore all of the above and maybe you can be the star of the next funny quit video compilation on YouTube:

(Author has no connection to YouTube video creator, just googled funny quit videos, found this and laughed).



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].

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