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OHS Compliance Cheat Sheet: Work Refusals

Sep
16

OHS Compliance Cheat Sheet: Work Refusals
The Dangerous Work Refusal Dilemma
- adapted from the September 2019 issue of OHS Insider

Refusing to perform assigned work is normally an act of insubordination for which a worker can be disciplined. But OHS laws create a special exemption that allows workers to refuse unreasonably dangerous work to protect their own or another person’s safety. Disciplining workers for exercising their refusal rights is a form of reprisal or “discrimination” banned by the law. And the dangerous conditions that prompt the refusal may potentially be serious OHS violations that must be addressed immediately. On the other hand, work refusals can be highly disruptive and are supposed to be used only as a last resort. That’s why refusal rights are subject to strict limitations affecting both the nature of the worker’s safety concern and the process of initiating the refusal. If the limitations aren’t met, the refusal is invalid and the worker may be disciplined for continuing to engage in it. While it may sound simple, responding to a work refusal and assessing its validity is hard to do, especially in the heat and tension of the moment. Following are some things to consider:

1. Which Workers Can Refuse Dangerous Work
Refusal rights cover any worker asked to do a dangerous job or confront a dangerous condition—union or non-union, full-time or part-time, temporary or permanent, paid or volunteer—as long as the danger is real and the proper refusal processes are followed.

2. When a Refusal Is and Is Not Justified
A worker has the right to refuse to do any specific job or task if they believe it is unusually dangerous. The danger may be to the worker or to any other person. An unusual danger could include:

  • A danger that is not normal for the job (e.g., repairing a roof in dangerous winds);
  • A danger that would normally stop work (e.g., operating a forklift with a flat tire); or
  • A situation for which you are not properly trained, equipped, or experienced to do the work assigned (e.g., cleaning windows on a tall building with no fall protection equipment or training).  

Sincere: First, workers must genuinely believe that they’re in danger and not use the refusal as a pretext to get out of an unpleasant assignment.

Reasonable: Sincerity isn’t enough. Workers must also have “reasonable” grounds to believe that work operations, conditions or equipment pose a danger to themselves or others. “Reasonable” is an objective standard that evaluates whether an average person in the same circumstances would consider the operation, equipment or condition dangerous.

Unusual: Even if the fear is sincere and the danger is real, the refusal may still not be justified if it’s an inherent and normal part of the job. However, workers who do dangerous jobs are allowed to refuse work that puts them at abnormal and non-inherent risk.

3. How the Refusal Begins
Workers can’t just pack up and go home. They must immediately notify their supervisor or employer that they’re engaging in a work refusal and explain their health and safety concerns.

4. The Initial Investigation Stage: Supervisor and/Employer
Once a worker explains why they have refused work, the supervisor or other person who receives the notice must take immediate action. The options:

  • Correct the health and safety hazard that prompted the worker to engage in the refusal; or
  • Investigate the situation and determine if there is a danger and, if so, how to correct it.

5. The Initial Investigation Findings of the Supervisor and/or Employer
The initial refusal investigation must take place immediately and reach 1 of 2 conclusions:

  • Danger - corrective actions taken or needed (including informing the Occupational Health and Safety committee); or
  • No danger - corrective actions unnecessary.

The worker now has a decision to make:

  • Accept the corrective actions taken or no danger determination and return to work; or
  • continue the refusal. NOTE: if the worker decides to continue the refusal the OHS Committee will convene an emergency meeting to investigate the refusal, meet and vote to determine if the worker has reasonable grounds to refuse the work. If the concern cannot be resolved within the workplace, an occupational health officer at the Occupational Health and Safety Division should be contacted.

6. The OHS Officer Investigation
Upon receiving notification, the agency sends an official to investigate the situation and issue whatever orders he/she believes are necessary to resolve the situation.

7. The Possibility of a Court Appeal
Although it doesn’t happen very often, workers who are still unsatisfied at this point still have one last option and that is to appeal the OHS investigator’s findings.

8. What Happens to the Worker during the Refusal
Time spent during a refusal counts as work time for which the refusing worker is entitled to full pay and benefits.

To read the full article, click here.

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