So imagine this…
Driving into work yesterday, relaxing before a – what I know to be a busy day. Mind bouncing around savouring the last remnants of a summer weekend.
In the background, CBC Radio 1 drowning out the noise of the world around me.
Then it happens; I am instantly sucked back into the working mindset. I hear the magic words that make all HR/Safety ears perk up – work refusal.
So I turn up the radio and listen to an interview of CBC reporter Inayat Singh explain his investigation into workplace refusals in the midst of the COVID-19 pandemic.
What really caught my attention was out of 280 reported work refusals to the Ontario Ministry of Labour, Training, and Skills Development, only one resulted in orders.
I do not know about you, but in my mind, I understand this.
Most workers are aware of that right, but not the full process of a formal refusal. So I thought that would be a perfect opportunity for a post where we can consider our rights during the global pandemic.
What the OHSA Says About Work Refusal
Let’s start off in everyone’s favourite piece of legislation – the Occupational Health and Safety Act. Specifically, S.43(3), which is our right to refuse work that we believe is unsafe.
Now there are four clauses attached here that act as caveats to the blanket statement of the ability to say “nope to that!” To summarize them for you:
- Anything you need to use or operate can hurt you
- The physical condition of the workplace in whole or in part can hurt you
- Workplace violence can hurt you
- Anything you need to use or operate or the physical condition of the workplace in whole or in part is in violation of the act or regulations and can hurt you
Glad we cleared that up, eh? Now we know what constitutes a valid work refusal under the act.
So a worker believes something is unsafe and report it to the supervisor. The supervisor investigates forthwith while keeping the worker in a safe place. It is then up to the supervisor to change the hazardous condition or to communicate to the worker why it is, in fact, safe.
If the worker still believes that there is a danger, it is investigated by the worker representative of the JHSC while the worker is assigned other work.
If there is found to be a hazardous condition, then it is corrected; if not, it is another opportunity to explain to the worker why the current controls are adequate.
If the worker still does not accept that the work is safe, then an inspector is called in to investigate and ultimately rules a decision as to steps going forward.
None of this information is new, but what has changed is that we now have a new hazard to contend with – COVID-19.
The Pandemic Effect
I am aware that the information regarding transmission of COVID-19 has been somewhat fluid in terms of what is known, but regardless of source, we know it is a very serious respiratory infection where close contact plays a role.
Controls such as physical barriers, masks, face shields, sanitization protocols, temperature taking, and physical distancing, to name a few, have become part of our new normal.
Accordingly, the health and safety policies and programs for your organization have no doubt been updated to reflect these changes. So how does our enshrined right to refuse unsafe work tie into these ever-changing times?
Same as any other new hazard in the workplace, its recognized, assessed, controlled and evaluated (RACE METHODOLOGY).
It doesn’t matter what the hazard is; it is the employer’s duty to protect workers from hazards in the workplace.
Now the legislation doesn’t specifically address COVID-19, so what we can now assume from the CBC article citing the Ontario Ministry of Labour, Training, and Skills Development is due diligence…
Good old “take every precaution reasonable in the circumstances for the protection of a worker” S. 25(2)(h) is what we look to.
Through courses or correspondence with clients, I have had many discussions about due diligence.
Realistically it breaks down to whatever can be, should be done to protect your workers. For COVID-19, there is a lot of information out there, but we want to look for reputable sources.
Employers are in a great position to get this information directly from our enforcement body. On the Ministry’s website, there are industry-specific protocols made available. That information should greatly help in the recognize aspect of RACE.
Next is the need to assess the risk within your workplace. Industrial Safety Trainers has provided a template to use for this purpose. Controls will be specific to identified risks for your workplace.
As for evaluation, with new information, changes will have to be made. At IST, we have that as part of our pandemic continuity plan.
Now let’s get to our original topic of work refusals.
Education and Communication are Key
According to the CBC article of 280 work refusals that made it past all of the above-mentioned steps, only one resulted in orders.
What this should tell us is that employers have been great at implementing controls to keep workers safe (in accordance with public health recommendations), but workers still feel unsafe.
Why is that? How much information is actually being communicated to workers in regard to the risk assessment?
Do workers understand how the selected controls are contributing to their health and safety?
Education and communication are key to a sustainable safety culture in any workplace, and this is no different. It is crucial to be very clear to your workers as to the risks and controls in place.
I can only assume that many work refusals that have resulted from COVID-19 are a result of a lack of understanding of either company efforts, or even requirements set out by the government.
Workers never forget they have the right to refuse unsafe work, but perhaps it’s time to remind them they also have the right to know and participate in their safety.
Lastly, I want to stress to employers the importance of considering psychosocial hazards associated with the pandemic. People could be scared, suffering from anxiety, depressed as a result.
This by-product of the pandemic will also affect your safety culture as well.
Workers have access to a lot of information through the media, but if your organization isn’t being as transparent as they think – this can exacerbate any underlying feeling your workers may have.
We all want to see businesses in the black – but consider the human cost this has played on your staff.
So if you take anything away from this, know that what you are doing is most likely correct (as long as you are following your industry-specific guidelines).
Workers will always have their right to refuse work; they believe that it is unsafe. It is up to your organization as to how well you communicate why your workplace is a safe one.
Knowledge is the best way to prevent invalid work refusals.
Geoff Rowatt | CHRP | Safety Trainer
