Do Covid-19 Fears Justify Telecommuter’s Refusal To Return To Work?

Based on the number of questions we’ve received, it seems that employers are having a hard getting workers who were allowed to work from home during the pandemic to return. Apparently, some workers are resorting to their OHS work refusal rights in a bid to avoid having to come back to the office.

Question: Is fear of getting COVID valid grounds for a work refusal’

Answer: Not generally but it depends on the circumstances.

Explanation: First of all, it’s far from clear whether telecommuters can refuse work from their home or a remote location since workers are supposed to initiate work refusals on-site. More significantly, based on OHS guidelines and enforcement actions (there haven’t yet been any court or arbitration rulings on the issue), a generalized fear of exposure to infection isn’t enough. To justify an OHS work refusal, the danger of infection must be ‘undue,’ that is, beyond what a person normally risks by leaving home and coming to a public setting. There are 2 basic situations where COVID-19 hazards may be undue:

  1. The employer unreasonably fails to follow the protocols for minimizing workplace infection risks called for by current COVID-19 public health guidelines, for example, regarding social distancing, face masks, cleaning and disinfection; or
  2. Workers have a physical or medical condition that make them unusually susceptible to COVID-19 infection, such as a compromised immune system that precludes vaccination or an asthmatic condition that makes it impossible to wear the required face mask.