The ongoing COVID-19 pandemic raises numerous questions for employers with respect to occupational health and safety. One of the situations that employers may face is employees exercising a right of refusal under the AOHS because of concerns related to COVID-19.
On December 1, 2020, mediator-adjudicator Michelle Lescarbeau of the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "CNESST") rendered a decision in Laine and Cook It Recipes Inc.1 that provides interesting insight on the legal framework applicable to the right of refusal exercised for reasons related to COVID-19.
On April 16, 2020, James Laine (hereinafter, the "Worker") filed a complaint under section 227 of the AOHS alleging that he had been dismissed by Cook It Recipes Inc. (hereinafter, the "Employer") on April 15, 2020 because he exercised a right under the AOHS by refusing to work in a refrigerator where he feared contracting COVID-19. The Worker had been hired on April 7, 2020 as a production worker for the Employer, a company specialized in the preparation of meal boxes.
The decision indicates that because of the COVID-19 pandemic, the Employer's employees were required to wear protective equipment, including masks, face shields, and gowns. On April 15, 2020, the Worker was assigned to assemble boxes in a refrigerator. According to his testimony, he noticed that the employees in the refrigerator did not respect the two-meter distance between each other. He then felt a sense of danger because of the possibility of contracting COVID-19. Further to the Worker's testimony, he indicated that some of his co-workers were removing their masks and visors. He then informed his supervisor of his uneasiness and of his desire to be assigned to another area where the risk of contracting COVID-19 would be reduced. He was subsequently assigned by his supervisor to another team. However, according to the Worker, a discussion took place between his supervisor and the assistant supervisor in connection with him leaving the refrigerator. Since he did not want to cause problems between both supervisors, he went back to his initial assigned station in the refrigerator where he completed his shift while being more cautious.
The Employer provided a completely different version. According to the Employer's representatives who testified, they were never aware of any concerns that the Worker raised in connection with contracting COVID-19. Rather, the Employer's representatives reported that the Worker was insubordinate and challenged the Employer's authority. They testified that the Worker had been late three times out of his six shifts since he was hired. It is this primarily this fact that led to the decision to dismiss him and not his reluctance to work in the refrigerator. However, in the dismissal e-mail sent by the Employer to the Worker, the reasons invoked were the refusal of the Worker to work in the refrigerator and his unpleasant behaviour towards his supervisors. However, at the hearing, a representative of the Employer clarified that the refusal mentioned by the Employer was his refusal to perform his duties, not a refusal under the AOHS.
The day after the dismissal, the Worker filed his complaint under section 227 of the AOHS. Shortly after this complaint, a CNESST inspector visited the Employer. The inspector indicated in his report that personal protective equipment was provided to the employees and encouraged the Employer to continue the preventive efforts.
Pursuant to the AOHS, a worker has a right to refuse to perform particular work if he has reasonable grounds to believe that the performance of that work would expose him to a danger to his health, safety or physical well-being, or would expose another person to a similar danger2. However, the worker may not exercise this right if his refusal to perform the work puts the life, health, safety or physical well-being of another person in immediate danger or if the conditions under which the work is to be performed are in the normal course3. Furthermore, where a worker refuses to perform a particular work, he must immediately inform his supervisor, his employer or an agent of his employer; if none of these persons are present at the workplace, the worker must take reasonable steps to ensure that one of them is informed as soon as possible4.
The mediator-adjudicator concluded that the Worker's complaint under section 227 of the AOHS was unfounded since he did not demonstrate the exercise of a right under the AOHS. Citing the Commission des lésions professionnelles' decision in Casino du Lac Leamy and Villeneuve5, the mediator-adjudicator highlighted that the Worker had to demonstrate the following in order to establish the exercise of a right of refusal:
"1.- being a worker within the
meaning of the AOHS (s. 12);
2. - being required by the employer to perform work (s. 12);
3.- apprehending a danger for himself or for others resulting from the performance of such work (s.12);
4.- such apprehension is based on reasonable grounds (s. 12);
5.- exercising this right of refusal with respect to work performed under abnormal conditions or circumstances (s. 13);
6.- being able to refuse to perform the work without endangering the safety of others (s.13);
7.- reporting as soon as possible to a representative of the employer the right to refuse to perform the work (s.15)." (Our translation)
The mediator-adjudicator was satisfied that conditions 1, 2, 3 and 6 were met in this case. However, the mediator-adjudicator found that there was no preponderant evidence that: (1) the Worker had reasonable grounds to apprehend a danger; (2) the situation in which he found himself was abnormal; and (3) he had reported his refusal to the Employer or one of its representatives.
The mediator-adjudicator explained that the reasonableness in the apprehension of a danger must be appreciated in light of the apprehension that a reasonable person would have under the same circumstances. In the case of the Worker, the mediator-adjudicator considered that he was aware of the measures implemented by the Employer (i.e. taking body temperature and ensuring that employees wear personal protective equipment) in order to protect employees from the risks related to COVID-19. According to the mediator-adjudicator, wearing of personal protective equipment allowed employees to work within two meters of each other. In this context, the mediator-adjudicator considered that the Worker had not established that his apprehension of a danger related to COVID-19 was based on reasonable grounds.
The mediator-adjudicator also considered that the Worker had not demonstrated that the working conditions or circumstances of execution were abnormal. According to the mediator-adjudicator, COVID-19 affected all aspects of our lives and the abnormal nature of this pandemic is not specific to workplaces. Therefore, the mediator-adjudicator refused to conclude that the working conditions or circumstances of execution were abnormal.
Finally, the mediator-adjudicator found that there was no preponderant evidence that the Worker had informed the Employer or its representatives of his refusal to perform work.
This decision is a useful reminder of the principles applicable to the right of refusal under the AOHS in a context where the apprehended danger is related to COVID-19. For such a right of refusal to be exercised, the criteria of the AOHS must be fulfilled. It will normally not be the case for employers who have implemented appropriate measures, including supplying personal protective equipment. Consequently, not all concerns related to COVID-19 will justify the exercise of a right to refuse to perform work.
1 2020 QCCNESST 203
2 Section 12 of the AOHS
3 Section 13 of the AOHS
4 Section 15 of the AOHS
5 2004 CanLII 81839 (QC CLP)
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