Do Covid-19 Fears Justify Employee Refusals To Return To Work?

Based on the number of questions I’ve been getting, it seems that employers are having a hard getting employees who were allowed to work from home during the pandemic to return. Apparently, some employees are resorting to their OHS work refusal rights in a bid to avoid having to come back to the office.

Question: Is fear of getting COVID valid grounds for a work refusal?

Answer: Generally no, but it depends on the circumstances.

Explanation: All agree that working from home is safer than coming to work and being around other people. But based on OHS guidelines and enforcement actions (there haven’t yet been any court or arbitration rulings on the issue), a generalized fear of exposure to infection doesn’t justify an OHS work refusal. Moreover, work refusals are supposed to be initiated in-person. However, refusal may be valid when the danger of infection is “undue,” that is, beyond what a person normally risks by leaving home and coming to a public setting. There are 2 basic situations where COVID-19 hazards may be undue:

1. The employer unreasonably fails to follow the protocols for minimizing workplace infection risks called for by current COVID-19 public health guidelines, for example, regarding social distancing, face masks, cleaning and disinfection; or

1. The employee has a physical or medical condition that makes him/her unusually susceptible to COVID-19 infection, such as a compromised immune system or an asthmatic condition that makes it impossible to wear the required face mask.