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The new Stay-at-Home Order (the “Order”) has raised several questions for employees who are still required to attend the workplace.

The Order states that every individual must remain in their home unless they leave for a necessary purpose such as work. “Work” is defined as work, “[…] where the nature of the work requires the individual to leave their residence, including when the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace.”.

According to the Minister of Labour (“MOL”), Monte McNaughton, employers must allow their workers to work from home.

The wording of the Order suggests that the employer has full discretion to decide if you are required to attend the workplace. Since the province does not have the resources to review all job descriptions and determine who can work from home, it is up to the employer’s judgement to determine who can work from home or not.

According to the Minister of Labour (“MOL”), Monte McNaughton, employers must allow their workers to work from home.  Even though the Minister’s message seems unequivocal, as stated above, the Order is broad and provides full discretion to employers. The takeaway? Employees have little recourse if they disagree with how an employer exercises their discretion.

What if I disagree with my employer’s decision?

We recommend the following steps if you believe that you should not be required to attend your workplace and you should be working from home instead:

  • Speak with your employer to ask if you can work from home;
  • If not, ask what components of your work require attendance and propose an alternative schedule. For example if you have to be in the workplace to collect the mail, suggest a rotation of mail collection with other employees.
  • If your employer still refuses and you reasonably believe you do not need to be in the workplace, contact the Ministry of Labour to file a health and safety complaint.

If you fear you are being reprised against for following the above-mentioned steps, contact one of our employment lawyers. You may be able to bring a formal complaint against your employer, which can be briefly described in the following steps.

Steps for Bringing a Complaint:

1. First stage: If you refuse work that is unsafe, you must promptly report the circumstances to your employer/supervisor;

  • a. Your employer/supervisor is required to investigate the workplace to resolve the issue.
    • i. Issue is resolved à you go back to work; or
    • ii. Issue is not resolve à you proceed to the second stage;

2. Second Stage: If you have reasonable grounds to believe that the workplace is still unsafe, you can continue to refuse unsafe work and either the you or your employer will contact the MOL;

  • a. An MOL Inspector will investigate the workplace and provide a decision;
  • b. Changes may be made to the workplace and you may then be required to return to work.

While you (the employee) are waiting for the investigation to be completed, the employer can provide the worker with alternative work.

Protection from Reprisal

Reprisal for bringing a workplace complaint can be done in various ways such as bullying, mistreatment in the workplace, and even termination of your employment. If you think your employer has reprised against you for reporting an unsafe workplace, you can complain to the Ontario Labour Relations Board. The Board may ultimately hold a consultation or hearing and  make an order to:

  • Remove or change nay penalty the employer may have imposed;
  • Reinstate/rehire the work; and/or
  • Compensate the worker for related losses.

The above-noted information is provided to encapsulate the general procedural steps in reporting an unsafe workplace. Since each employee’s circumstances is fact-dependent, you should ensure you speak with one of our Employment Lawyers prior to making any employment-related decisions as described above.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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