As we said, employees cannot refuse to work or choose where they will work unless they have a contractual right to do so. We have heard of many individuals insisting that they are “not ready to come back yet”, or similar circumstances. Unfortunately, this is not a choice available in most cases.
Employees may be entitled to delay a return to work if they are unable (not just unwilling) to work for COVID-19 related reasons, or if there is a human rights-based reason such as childcare obligations or medical restrictions, including mental health. While employees have a right under the law to refuse unsafe work, the Ministry of Labour has repeatedly rejected claims that a risk of COVID transmission creates an actual safety risk where the employer is complying with public health guidelines.
We have also met with many individuals who were scared to return to work, not because of the workplace itself, but due to more general fears of being out in public or using public transit.
The reality is that there may be coworkers present who are ineligible or unwilling to take the COVID-19 vaccine, and their colleagues may never know if employers do their part about keeping sensitive information quiet. Employers must make reasonable efforts to provide a safe workplace, and employees can only rely on their right to refuse unsafe work if there is a specific and legitimate risk in the workplace.
If an employee is refusing to return, employers should discuss the issue with them and see if there may be human rights issues or other legitimate concerns motivating their hesitancy. If there are none, employers may wish to explore a reasonable accommodation, or they may wish to draw a hard line and provide the employee with a direct warning that their continued refusal will lead to the end of their employment. As we said, employees did not gain a new right to choose when and where they will do their job as a result of COVID.
In any event employers would be advised to contact our office before making any decisions, and employees can always contact us to consult on their rights in this situation.