As workplaces begin to re-open under the government of Saskatchewan’s Five Phase Re-Open Saskatchewan Plan, one common inquiry is whether an employee can refuse to return to work following a recall notice due to concerns related to COVID-19.
The Public Health Order of May 3, 2020 (the "Order") requires that individuals identified by a Medical Health Officer as having COVID-19 must immediately and mandatorily self-isolate until such time as a Medical Health Officer determines that they no longer pose a threat to the public. Further, the Order requires that:
- Individuals identified as a "close contact" of a person with COVID-19 must to self-isolate for 14 days from the date of their last exposure to COVID-19;
- Individuals who are household members or "contacts" of a person with COVID-19 must self-isolate for 14 days.
- All persons who have travelled internationally shall go into mandatory self-isolation for 14 days from date of arrival back into Canada, except for: (i) specific health care workers; (ii) workers who provide emergency health care services; (iii) workers who are essential to maintain essential services; (iv) workers who maintain supply chain; or (v) rail, airline and transport crews.
Workable definitions of "close contact" and "contact" are described in the Saskatchewan Health Authority Communicable Disease Manual (the "Manual").
Individuals caught by the Order are required to self-isolate and have a legitimate right not to report to work upon recall for the period mandated by the order.
However, if an individual is not caught by the Order and does not wish to resign, the individual is required to report to work except in very limited circumstances. Firstly, The Saskatchewan Employment Act provides a worker has a right to refuse to perform work "if the worker has reasonable grounds to believe that the act or series of acts is "unusually dangerous" to the worker’s health or safety or the health or safety of any other person in the place of employment." See our previous blog on work refusals, which outlines the process. Work refusals will depend on a number of factors, including an employer’s compliance with the parameters of the Order, Provincial guidelines more particularly described in our Saskatchewan Issues Workplace Health and Safety Guidelines for Employers as Businesses Reopen blog, relevant occupational health and safety legislation, whether COVID-19 is present, and the diligence measures that the employer put in place to control the spread of COVID-19 in the workplace. If adequate measures have been taken by the employer to ensure the safety of its employees, the right to refuse to return to work under these health and safety provisions may not exist.
If an individual being asked to return to work following a layoff lives with someone who is immuno-compromised or has childcare obligations resulting from school or daycare closures, or other family responsibilities related specifically to COVID-19, the employer has an obligation to assess whether or not they have an obligation under provincial human rights and employment legislation to accommodate the individual’s absence from the workplace due to family status, a protected ground under The Saskatchewan Human Rights Code. If this is the case, the employer’s obligation to accommodate will be assessed based on the threshold of "undue hardship", given the facts surrounding each specific case.
If employers have any questions related to an employee’s right to refuse to return to work following a recall for reasons associated with COVID-19 please feel free to reach out to a member of our labour and employment group and we will be pleased to assist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
by John Agioritis and Leah Schatz, Q.C., MLT Aikins LLP