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The Question

I work at a distribution centre which happens to be in a COVID-19 hotspot. There are mask protocols but management doesn’t enforce them. I got into an argument with a supervisor because he doesn’t wear a mask and doesn’t enforce the policy. What can I do to keep myself safe, but also keep my job?

The First Answer

Sarah V. Coderre, managing lawyer, Taylor Janis LLP Workplace Law, Calgary

Under occupational health and safety (OHS) legislation across Canada, you have the right to a safe work environment that is free from hazardous substances. The novel coronavirus fits the definition of a hazardous substance under OHS legislation. Your employer has done the right thing by introducing a mask policy, but the policy is meaningless if they do not enforce it. If your workplace is one in which your provincial/territorial health authority has mandated the use of masks to stop the spread of COVID-19, then your employer has violated OHS standards by not enforcing its policy.

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You have the right to refuse unsafe work under OHS legislation. In order to keep your job and protect yourself, you should: (1) tell your employer that you refuse to work until the mask policy is consistently enforced and (2) make a complaint to the OHS office. OHS will send an inspector to your workplace to see if proper safety protocols are in place and are being followed. If they discover that the mask policy is not being followed, then the OHS officer will issue an order directing the employer to take steps to implement those protocols.

Your employer cannot legally terminate your employment or punish you because you have reported unsafe working conditions or refused unsafe work. If your employer terminates you, you can send a further complaint to OHS. If OHS concludes you were terminated or punished because of your complaint, they can order your employer to rehire you and pay you backpay.

The Second Answer

Mika‌ ‌Imai,‌ ‌associate,‌ ‌Karimjee‌ ‌Law,‌ ‌Toronto

In Ontario, an employer must take every precaution reasonable in the circumstances for the protection of a worker. Based on current public health advice, this will typically mean mandatory mask use.

Employees also have the right to refuse unsafe work (though partially limited for certain jobs, such as healthcare workers) and employers are prohibited from punishing employees for a good faith refusal or, more broadly, for complaining of an unsafe workplace.

Some options to consider:

Raise the issue with someone else. If you’re unionized, tell your steward. If your workplace has a health and safety committee, tell them. Or, escalate your complaint within management. It may be that someone higher up will take your complaint seriously. Be sure to put your concerns in writing.

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Alternatively, you could make a complaint to the Ministry of Labour. Complaints can be made anonymously. The Ministry may send an investigator who can issue orders against your employer if the workplace is deemed unsafe. Of course, there’s no guarantee the investigator will agree with your assessment. Ministry data shows that of 278 COVID-19 related work refusals from March to June, all but one was denied.

If you still don’t feel safe, you could ask to work from home or take a leave of absence. Keep in mind, though, unless there are special circumstances that put you or someone you care for at an elevated risk, there’s generally no obligation on the employer to permit the request.

No matter what, document the situation and date your notes.

Have a question for our experts? Send an email to NineToFive@globeandmail.com

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