Written by: Daniel McBain
On May 6, 2020, the Province announced its Restart Plan for gradually reopening the economic, social and cultural life of B.C. While many of the details remain to be determined, a number of important changes for working people are coming.
As employers reopen or expand operations and increase in-person contact, perhaps the single most important step workers and unions can take is to advocate for ongoing, proactive discussions around whether and how it may be possible to safely return to the workplace. As the Province has emphasized, “[t]his is not a return to normal. Moving too quickly could put all of our combined efforts and progress in jeopardy.” An adequate process of regular consultation and adjustment will be key to ensuring safe workplaces.
In the absence of consultation and adequate measures being taken, some workers may be required to exercise their right to refuse unsafe work. This blog sets out formal processes available to unions and employees to provide input, and the right to refuse unsafe work where that input does not result in a safe workplace.
The Plan
The Plan sets out four phases, with progress being determined by how well the COVID-19 crisis is being handled:
Phase 1: Where we are now.
Phase 2: Begins mid-May, with most changes beginning after the May long weekend. It involves reopening a variety of sectors under carefully designed protocols to prevent the spread of disease, including various health services, retail operations, office-based worksites and personal service establishments.
Importantly for many workers, childcare will begin to reopen in this stage. However, the education sector is not set to reopen until Phase 3. Accommodations for family caregiving obligations will continue to be needed for many workers.
Phase 3: Set to begin through June-September. It will only proceed if the COVID-19 transmission rate remains low or in decline.
Among other things, K-12 education will have a “partial” return in June, and a “full” return in September. The Plan clarifies that a “full” return is still not a return to “normal”.
Phase 4: No set date. It will only begin if there is widespread vaccination, community immunity, or broad successful treatments. It will involve allowing large gatherings and international tourism.
Further detail is available in the Go-Forward Management Strategy, which addresses specific industries and core measures to safely increase contact between people, and the Go-Forward Management Checklist.
Consultation Processes
Joint Occupational Health and Safety Committees & Worker Safety Representatives
Under the Workers Compensation Act, joint occupational health and safety committees are required for each workplace, whether unionized or not, where 20 or more workers of the employer are regularly employed, or where the Board otherwise orders. The committee is split evenly between employer representatives and worker representatives. Many collective agreements provide for a committee even where the statutory threshold is not met.
Safety committees’ duties include identifying and advising the employer about unhealthy or unsafe conditions in the workplace. Employers are required to respond to any recommendations and to provide requested information.
Committees must generally meet at least once per month. In light of rapidly changing conditions during the pandemic, committees are likely to need to meet much more often to properly discharge their obligations.
The pandemic should not be an obstacle to the committee meeting, by virtual means or teleconference if appropriate. Employers are legally obligated to provide the committee with the equipment, premises and clerical personnel necessary for the carrying out of its duties and functions.
Workplaces with 10-19 workers of the employer must have a worker health and safety representative selected by a vote of the workers or, if they do not selected a representative, by appointment of the employer. Worker representatives generally have the same duties and rights as a safety committee.
For workplaces under federal jurisdiction, the Canada Labour Code similarly requires a safety committee for workplaces of twenty or more, a representative for workplaces of under 20 regular employees, and a workplace health and safety policy committee for workplaces of 300 or more.
Consultation Committees
Under B.C. labour law, all collective agreements must have a provision requiring a consultation committee. The specific terms of the provision depend on whether one is negotiated during bargaining, or deemed by the Labour Relations Code to be included after a failure to include one during bargaining.
The purpose of consultation committees is broader than joint health and safety committees, and involves discussing “issues relating to the workplace that affect the parties or any employee bound by the agreement”. Committee rights, obligations, procedures and resourcing are generally left to the parties to determine rather than prescribed in legislation.
An employer is also required to give notice and consult with the union where it “introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies”. This specific process, which may or may not occur within the consultation committee, can result in modifications to the collective agreement by way of an adjustment plan.
Changes to work as a result of COVID-19 are likely to engage both safety and broader workplace issues. In addition to engaging in discussions within safety committees and consultation committees, it will be important to ensure good communication between these committees (or the representative) as well, because recommendations or decisions by one may well have an impact on the other.
Informal Methods
Some employees, particularly those in small, non-unionized workplaces, may not have access to formalized processes. Employer in these circumstances are still required to have some informal method of raising safety issues, and employees are protected by the Workers Compensation Act from retaliation for having raised safety issues.
Refusing Unsafe Work
As businesses reopen or expand, it is inevitable that there will be some disagreements as to what is necessary to make a workplace safe and keep it that way. Many businesses will be under significant pressure to increase their revenue, which may lead some to err on the side of taking inappropriate risks.
Refusing unsafe work is both a right and a responsibility of workers: provincial health and safety legislation says that workers must refuse work where they have reasonable cause to believe it would create an undue hazard to health or safety.
Where an employer has failed to put in place adequate measures to prevent the spread of COVID-19, workers may need to exercise this right.
The appropriate procedure where a worker believes they have reasonable cause to believe that work would create an undue hazard to health or safety is to:
Refuse to perform the work and report the situation to their supervisor or employer. The employer must then investigate and determine whether the work is unsafe.
If the employer concludes that the work is unsafe, they must take all necessary steps to ensure that it can be performed safely.
If the employer concludes that the work is safe, they must report back to employee. The employee may either be persuaded by the employer’s conclusion but if they are not, they should move to step 2.
The employee should communicate their disagreement and maintain their refusal to perform unsafe work. The employer must then investigate in the presence of the worker and one of the following as applicable: (1) a worker representative of the joint health and safety committee; (2) a worker chosen by the union; (3) a worker selected by the worker who reported the unsafe work.
If the matter is not resolved, report the matter to WorkSafeBC, who will investigate and determine what, if anything, must be done.
Employers are prohibited from disciplining employees if they follow this process. Employers may, however, assign employees alternate duties without loss of pay.
Federally regulated workers have similar rights and obligations. Under the Canada Labour Code, they must refuse work when they have reasonable cause to believe that it constitutes a “danger” to the employee or another employee. There are two exceptions: where a refusal would put the life, health or safety of another person directly in danger, or where the danger is a normal condition of employment. Specific conditions also apply to employees on ships or aircraft that are in operation.
Work refusals involve a similarly escalating procedure of investigation, culminating in a report by the employer to the Minister of Labour.
The best way to avoid this conflict is to engage in proactive discussions around steps the employer is taking to ensure a safe workplace and how employees can safely work. The Go-Forward Management Strategy and Checklist both provide significant guidance, emphasizing:
Risk assessment respecting (1) how long, and how close, persons may come into contact in the workplace (“contact intensity”), and (2) how often people come into contact (“contact frequency”). The goal of any steps taken will be to reduce these where possible;
The need for strict policies prohibiting symptomatic persons from attending or remaining in the workplace;
Maintaining clear policies more generally and educating employees about the basic facts around COVID-19, including symptoms, how it spreads, and steps to mitigate risks;
Employers are specifically advised in the Go-Forward Management Strategy and Checklist that they “should implement sick day policies for the coming twelve months that actively support individual staff being off sick more often or working safely at home during these illnesses”;
Consultations around sick leave should also take into account the possibility that negative impacts on employees due to having or being perceived to have COVID-19 may engage the duty to accommodate under human rights legislation. We expect this to be an area in which there are further developments;
Maintaining physical distance, putting in place physical barriers, and use of personal protective equipment where those are not possible;
Additional cleaning and the provision of hygiene supplies; and
Taking extra precautions for vulnerable individuals.
Further, WorkSafeBC is developing industry-specific protocols and procedures in consultation with interested parties, and has published a general guide about returning to safe operations.
All of these steps will need to take into account the particular nature of the workplace, the business, and the employees. Ultimately, expanding or reopening workplaces will be an ongoing process that should involve the input of everyone affected to ensure decisions are made in the most informed manner possible. It is vital that employers, unions and workers alike stay abreast of current guidance, from WorkSafeBC, the BC Centre for Disease Control and the Provincial Health Officer.
This blog contains general legal information and does not constitute legal advice. Readers with questions about their particular situation should contact a lawyer. The lawyers at Moore Edgar Lyster LLP are available here.