Refusal of Unsafe Work
September 27, 2022
September 27, 2022
This article was prepared with the assistance of articling student Alie Teachman.
The right to refuse unsafe work is one of the core protections extended to workers in BC by Occupational Health and Safety Regulation (“OHS Regulation”) pursuant to the Workers’ Compensation Act (the “WCA”). Effective August 22, 2022 amendments to Part 3 of the OHS Regulation introduced new employer responsibilities relating to the reassignment of work following a refusal of unsafe work.
Prior to these amendments, the process did not require an employer to inform other workers of a prior refusal when reassigning the same work. The updated OHS Regulation now requires employers to:
- provide written notice of unresolved work refusals to any worker who is subsequently assigned or permitted to perform the same work; and
- provide written notice of the reassignment of refused work to the joint health and safety committee or worker health and safety representative (the “worker representative”), when there is one at the workplace, or to the union or other worker.
This bulletin provides guidance regarding the responsibilities of employers when faced with a refusal to work based on unsafe work pursuant to the updated OHS Regulation.
A. What is the Right to Refuse Unsafe Work
Section 3.12 of the OHS Regulation sets out the right for workers to refuse to work when they have a reasonable cause to believe that to do so would create an “undue hazard” to the health and safety of any person.
An “undue hazard” could be any work process, or the use of a tool, machine or piece of equipment, that creates a risk of injury or occupational disease for the worker. It could also be the result of threats of violence against the worker.
The worker’s belief that the work would create an undue hazard must be reasonable. Whether or not the worker’s belief is reasonable is determined using an “objective” test, by considering how a reasonable person acting on the information available at the time of the refusal and exercising good faith judgment would have viewed the situation.
Employers need to consider the refusal on a case-by-case basis, depending on the situation. This includes due consideration to section 4.19 of the OHS Regulation. Section 4.19 of the OHS Regulation provides that a worker with a physical or mental impairment which may affect the worker’s ability to safely perform assigned work must inform his or her supervisor or employer of the impairment, and must not knowingly do work where the impairment may create an undue risk to the worker or anyone else. A worker must not be assigned to activities where a reported or observed impairment may create an undue risk to the worker or anyone else.
B. What must the Employer do in response to refusal to perform unsafe work
If a worker exercises their right to refuse unsafe work, an employer must follow the three-step investigating and reporting process outlined in section 3.12 of the OHS Regulation. The refusal may be resolved at any of these steps.
A worker refusing work based on an unsafe condition must immediately report the unsafe or harmful condition to the supervisor or employer. The supervisor or employer must immediately investigate the matter.
If the supervisor or employer agrees that the work is unsafe, they must remedy the unsafe condition without delay. If the supervisor or employer investigates and disagrees with the worker, they must inform the worker of their opinion. The refusal will be resolved where the worker, supervisor, and employer agree that the unsafe condition has been remedied, or that there is no unsafe condition.
If the worker continues to refuse the work as unsafe, the supervisor and employer must investigate the matter again. This investigation must be conducted in the presence of the worker who made the report as well as a worker representative, a worker selected by the union, or, if neither is available, a worker selected by the worker who made the report. Again, the refusal will be resolved where the parties agree that the unsafe condition has been remedied or that there is no unsafe condition.
Where there continues to be a difference of opinion about the unsafe condition, the investigation must be escalated. At this stage, both the supervisor or the employer and the worker who is refusing work must immediately notify WorkSafeBC. A prevention officer will then investigate and issue whatever orders are necessary to resolve the matter.
Reassignment of refused work
While an employer works through the above steps, refused work may be reassigned to another worker. However, the employer may only reassign refused work if it believes the work will not present an undue hazard to the other worker. For instance, because the employer believes the work is not unsafe or because the other worker possesses additional training or experience to safely perform the work (and which the original worker did not possess).
Further, the employer must adhere to notice requirements set out in section 3.12.1 of the OHS Regulation, which was added in the August 22, 2022 amendments. Written notice must be provided to the worker assigned or permitted to do the refused work and the worker representative, if applicable. The written notice must document:
- The fact that another worker has refused the work;
- The unsafe condition that caused the worker to refuse the work;
- The reason why the work would not create an undue hazard for the subsequent worker, or to the health and safety of any other person; and
- Information about the subsequent worker’s right to refuse unsafe work.
“Reasonable cause to believe” and the susceptible worker
Some workers may have an underlying condition which would lead them to suffer an illness or sustain an injury, even though others would not be affected in the same way. In this so-called “susceptible worker” situation, the “objective” test of whether the worker has reasonable cause to believe the work presents an undue hazard is to be applied in the context of the person’s specific health condition. We note that there may also be accommodation obligations triggered by such circumstances.
To uphold a work refusal, there must be a clear connection between the undue hazard asserted by the susceptible worker, and his or her health condition. As part of the investigation into the refusal, the employer may ask for confirming evidence of the effect of the hazard on the person’s condition. While the evidence is being obtained, the worker should be removed from the condition that the worker asserts is an undue hazard.
C. What can employers with a unionized workforce do when a work refusal is “illegitimate”
A pattern of work refusals during the term of a collective agreement (i.e. when a “strike” is not permitted) can constitute an illegal strike in BC. However, section 63(3)(a) of the Code provides that an act or omission by a trade union or by employees does not constitute a strike if it is required for the safety or health of those employees. The threshold question is whether the employees involved had good faith and reasonably-held beliefs that their health and safety was in jeopardy. If that threshold is met, then the employees were not engaged in a strike and the employer will not be able to seek relief on the basis of an illegal strike.
In many cases, the determination of whether a refusal meets the protection of s.63(3)(a) will not be quick or easy. However, neither workers nor unions have the unfettered right to slow down or stop work.
Refusals to work on the basis of alleged safety issues can understandably create significant concerns amongst employers and their supervisors. Safety is paramount in the construction industry and the recent amendments to the work refusal process provide a good opportunity to make sure that your supervisors are familiar with the proper process to follow. It is important that supervisors faced with such refusals know what they are required to do to comply with the law – but also how work can be resumed safely and efficiently.
For more on recent developments in workplace law in the construction industry see our article, written with Ryan Copeland, Two Significant BC Labour Code Changes: Card Certification is Back & Open Season is Declared in the Construction Industry for Raiding Unions.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.