The Right to Refuse Work During the COVID-19 Pandemic
The COVID-19 pandemic forced Quebec to pause for several weeks, even months. As people gradually return to their workplaces, employers face significant challenges in recalling their employees to work.
Indeed, this unprecedented crisis has led employers to question how to bring their employees back in a context where the Government of Canada has made the Canada Emergency Response Benefit (CERB) available to citizens. This government assistance program has created a headache for many employers who are struggling to recall their employees, as some individuals use the most trivial excuses to continue benefiting from this payment without returning to work. Some workers attempt to invoke the right to refuse work as a way to avoid returning while still receiving CERB.
However, the use of the right to refuse work during the COVID-19 period is only permitted in specific situations defined by law and case law and cannot simply serve as an excuse to avoid returning to work.
The law grants workers the right to refuse to perform a job if they have reasonable grounds to believe that doing so would expose them to a danger to their health, safety, or physical integrity, or that it could pose a similar risk to another person[1]. To exercise this right, the employee must immediately inform their employer or a representative of the employer about the reasons for their refusal to work[2].
In this context, workers may refuse to return to work only if there is a real and objective danger of contracting the coronavirus upon their return. The concept of “danger” is different from that of “risk,” a distinction often misunderstood by both employees and employers when justifying a refusal to work. The difference lies in the fact that “danger is more than a risk. Danger involves a real threat, whereas a risk refers to an event that, while possible, is less certain. The threat must be more than hypothetical and must constitute more than a mere fear, concern, or apprehension.”[3] However, case law has recognized that “danger does not have to be imminent; its occurrence does not have to have begun, but more than a simple fear or apprehension is required to justify refusing to perform a job.”[4] It is important to remember that the right to refuse work is a preventive rather than a curative measure[5].
In a pandemic context, simply returning to work presents some level of risk for all workers, regardless of industry. However, this does not necessarily constitute a real and objective danger under the Occupational Health and Safety Act. Simply fearing the possibility of contracting COVID-19 is not sufficient to justify invoking the right to refuse work. Each case must be assessed individually.
Furthermore, the right to refuse work is not absolute. An employee cannot exercise this right if their refusal would endanger the life, health, or physical integrity of another person[6]. For example, a firefighter cannot refuse to intervene during a fire because that task is inherent to their job. However, if safety standards for intervention were not met, this task could become abnormal[7]. Therefore, it is essential to assess the normal working conditions and analyze them based on the type of work performed, as each case is unique.
Additionally, even if a worker exercises their right to refuse, the employer may require them to remain on-site to perform other tasks that do not expose them to the alleged danger, while the employer, their representative, or a CNESST inspector assesses the right to refuse.
If a disagreement arises between the employer and the worker regarding the worker’s right to refuse, only an inspector from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) can decide the matter[8]. The inspector must determine as quickly as possible whether a real danger exists that justifies the worker’s refusal to work[9].
Finally, it is crucial to remember that when an employee exercises a right granted by law, they cannot be fired. An employer cannot terminate, suspend, transfer, or retaliate against a worker solely because they exercised their right to refuse work[10].
However, case law has recognized that if a worker abuses their right to refuse work, acts in bad faith, or violates legal exceptions, the employer may impose disciplinary measures, the severity of which will depend on the circumstances. Therefore, a worker who refuses to work based on a risk rather than a reasonable fear of danger may face disciplinary action.
For any further questions about the right to refuse work, please do not hesitate to contact one of our lawyers, who will be happy to assist you.
Marie-Pier Cauchon, Lawyer
[1] Occupational Health and Safety Act, R.S.Q., chapter S-2.1, section 12.
[3] Syndicat des agents de la paix en services correctionnels du Québec v. Ministère de la Sécurité publique (detention), C.L.P. 280061-04-0601, August 23, 2007, J-F. Clément, para. 146.
[6] Previously cited, note 1, article 13.
[7] Girard v. Québec (Ville de), CLP, No. 169104-32-0109-5, December 20, 2004, SOQUIJ AZ-50287645, Guylaine Tardif, para. 133: “Obviously, firefighting is inherently dangerous. However, the danger increases when the firefighter does not have the required equipment and when the organization of work is unsafe.”
[8] Previously cited, note 1, article 18 et ss.
[9] Previously cited, note 1, article 19 et ss.
[10] Previously cited, note 1, article 30.
*note that this article was translated from French to English
