These are tough times for all of us. Let me acknowledge that out of the gate. You’ve no doubt felt any combination of fear, disappointment, grief, chaos, angst and maybe even rage over the last few weeks in the wake of the Coronavirus pandemic. That’s okay. We all have.
Let us try and alleviate some pressure that you may be facing with respect to protecting your membership and ensuring a safe work environment. We will be specifically discussing the following protections: legislated leaves, work refusals, and grievances with respect to collective agreement & statute violations.
On March 17, 2020, the Ontario Government declared an emergency. Two days later, on March 19th, 2020, Bill 186 was passed. This bill amends the ESA to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures or to care for other relatives.
This leave applies to employees who are impacted by COVID-19, including but not limited to those engaged in treatment for the virus, in isolation, directed not to work by their employer, or for an employee who is providing care to persons infected.
The employer may require the employee to provide some evidence that is reasonable in the circumstances, which could include a note from the daycare, etc., but not a medical note. These measures are retroactive to January 25, 2020, and will remain in place until COVID-19 is defeated.
Right to Refuse Unsafe Work (Occupational Health and Safety Act)
In addition to the Emergency Leave noted above, employees retain the right to refuse unsafe work under the Occupational Health and Safety Act (OHSA). That being said, I want to note that the right to refuse work is currently not much help to employees. The test applied by the Ministry is one of “imminent harm”. The reality is, although COVID-19 has been deemed a GLOBAL PANDEMIC, the Ministry has not yet considered it as meeting the test of “imminent harm”.
Should you advise your members to stop refusing unsafe work? Absolutely not. Continue to advise them of this practice, yet please consider the additional course of action.
Collective Agreement and Occupational Health and Safety Act (Combined)
File a grievance for a breach of the health and safety articles contained within your collective agreement (if applicable to your collective agreement) as well as for a breach of the Occupational Health and Safety Act.
Using the grievance and arbitration procedure provides the Union and its members with the best possible remedy in our current climate. First, it provides the Union with the ability to raise the issue directly with the Employer without any 3rd party interreference. Second, we can request any remedy we deem fit. Third, we have carriage of the grievance which gives us complete control over the process.
The Employer, under both the collective agreement and the Occupational Health and Safety Act has an obligation to provide a safe work environment and further, the Occupational Health and Safety Act specifically states that they have to take all reasonableprecautionsto ensure the safety of its workers.
If your Employer is doing NOTHING to protect the health and safety of your membership in light of this pandemic, we have a serious sickness that needs to be treated, and it’s not COVID-19.
If you have any question or concerns with respect to drafting grievances, appealing ministry decisions, or protecting your members, please do not hesitate to call us.
The content in this handout is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Watson Labour Lawyers does not warrant or guarantee the quality, accuracy or completeness of any information contained in this handout. Additionally, ownership of this handout does not create a lawyer-client relationship.
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