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A transit shelter at Queen St. West and Tecumseh St. is photographed on April 28 2020. Retail outlets are starting to reopen following closures due to the COVID-19 pandemic.

Fred Lum/the Globe and Mail

The Question

I work in retail and my employer wants me to return to work now, but I am frightened to do so. What if I get COVID-19? Do I have to go back to work?

The First Answer

Natalie C. MacDonald and Mackenzie Irwin, MacDonald & Associates, Toronto

As long as the employer is meeting all of the safety guidelines outlined by the provincial and federal governments, you must return to work. It is the employer’s obligation to stay current on what those guidelines entail and ensure that they are being followed in the workplace.

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Nevertheless, many employees will be nervous about re-entering the workplace, which is why it is imperative that now, more than ever, employees and employers engage in an honest discussion about what steps can be taken to ensure that employees feel safe at work.

If an employee does not feel that their employer is doing enough to protect them from COVID-19 and following the government safety guidelines, he or she can exercise their right to refuse unsafe work and file a complaint with the provincial Ministry of Labour. This work refusal must be based on a specific condition in the workplace that is making the employee feel unsafe and cannot simply be that the employee is frightened. Once a complaint is made, the Ministry of Labour is required to inspect the workplace and determine whether it is safe.

Employees who refuse to report to work, when their employers are adhering to all of the safety guidelines, may be at risk of being considered to have abandoned their job, making them ineligible for the Canadian Emergency Response Benefit and employment insurance.

However, there will be some exceptions to this obligation to return to work, given that accommodation may be required for individuals with compromised immune systems, medical conditions and those who have child-care obligations.

If you, however, unfortunately, contract COVID-19, you have an obligation to immediately inform your employer so that they may immediately inform other employees and perform a thorough disinfection of the workplace.

The Second Answer

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

If you have received medical advice recommending that you should not return to work because you’re at higher risk of adverse effects from COVID-19 (e.g. over 65, underlying medical conditions, etc.), then you would be entitled under human rights legislation to ask your employer to accommodate your medical restrictions by extending your layoff or leave of absence from the workplace. If you are not at a higher risk of becoming seriously ill if you were to contract COVID-19, then you would not have any legal right to remain on a layoff or unpaid leave of absence.

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However, you do have legal protections under occupational health and safety (OH&S) legislation. OH&S legislation across Canada requires that employers remove hazards from the workplace, such as harmful biological substances, in order to provide their employees with a safe working environment. Your employer must take steps to ensure that the workplace is safe for you to return, including implementing public health guidelines such as requiring staff to take their temperature upon attending work and complete a questionnaire confirming no symptoms, supplying proper handwashing facilities and hand sanitizer, supplying staff with face masks and gloves, installing social distancing measures such as plexiglass shields to separate cashiers from customers, requesting that customers pay through debit and credit cards rather than cash and placing signage throughout the business to enforce social distancing.

You have a right to know if your employer has instituted any of the policies required by public health authorities prior to you returning to work. If not, you could refuse to return to work due to unsafe work conditions and report the company to your local OH&S authority. OH&S officers would then be sent to inspect your workplace and would provide your employer with an order to address any deficiencies in their policies.

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