Great Q. What you’re dealing with is a leave of absence situation rather than a work refusal. The basic Q: Is he or is he not entitled to be on leave under BC ESA or applicable employment contracts or collective agreements if you provide leave more generous than ESA minimums.
And based on what u describe, this employee IS NOT ELIGIBLE for the new BC emergency COVID-19 leave because he hasn’t been diagnosed with COVID, quarantined, asked to self-isolate, told by his employer not to work to prevent exposure to others in the workplace, caring for family member with COVID or affected by school or daycare closure or stranded outside BC due to travel restrictions.) As a result, I suggest just treating this as you would have any other employee not coming back from leave before the pandemic and take COVID-19 out of the equation. The simple Q: Does he or doesn’t he have entitlement to
The other key point is that this is NOT a work refusal, at least not yet. The employee does have the right to invoke his OHS work refusal rights if he’s really scared. But to do that, he has to actually come to work and initiate the refusal process by notifying the company of his refusal. If that happens, an investigation would be necessary to determine whether the employee is in danger and the refusal is reasonable. Based on what u tell me about the effectiveness of your safety measures, his refusal would probably not be upheld. He’d have a better chance if he was the one with the susceptibility; still, the wife’s susceptibility could make the refusal justified. U just never know how refusals will turn out. But the bottom line is that, at this point, there is no refusal and this is all speculation.
Parting words: If he’s used up his leave entitlement, he’s subject to discipline. But if he does come back, he can try a work refusal. Great Q. Sorry for the long answer. Glenn
