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The OHS laws clearly allow workers to refuse work when they have “reasonable” cause to fear serious injury or illness to themselves and/or others. As with all work refusals, the supervisor who receives the refusal must make a determination about whether the worker’s concerns are reasonable. Unfortunately, that’s easier said than done. OHS statutes and regulations don’t go into details or specifics about what makes a refusal reasonable. The only official source to go for guidance are the cases in which a court or arbitrator had to apply the principles to real-life refusals. Here’s a rundown of the 8 cases where that actually happened.
| CASE | GROUNDS FOR REFUSING | OUTCOME | EXPLANATION |
|
Caverly v. Canada (HRSD) |
HRSD worker fears getting SARS from immigrants | Refusal Invalid | Worker not exposed to infection risk, but HRSD should have done a better job of addressing concerns |
|
Chapman v. Canada (Customs and Revenue Agency) |
Customs agent fears getting SARS from new Asian immigrants | Refusal Invalid | Custom agents don’t encounter individuals with SARS; even if they did, they can’t get it from proximity to infected individuals |
| Cole v. Air Canada | Air Canada ticket agents fear getting SARS from Asian passengers | Refusal Invalid | Medical evidence shows SARS isn’t transmitted by proximity to infected individuals; airline adequately addressed SARS concerns |
| Hogue-Burzynski v. VIA Rail Canada | Railroad crew members fear getting intestinal virus from sick passengers on previous trip | Refusal Invalid | Railway took steps to minimize risk and workers had to accept that risk as part of their job |
| Swan River Valley Hospital (Re) | Hospital workers fear getting Hepatitis B | Refusal Invalid | Not reasonable to require hospital to vaccinate all workers, especially when they didn’t demand vaccination in collective bargaining |
| Walton v. Treasury Board | Prison guard fears getting Hepatitis B from inmates | Refusal Valid | Fear of being doused with waste bucket is reasonable given that Hepatitis B is spread via contact with feces, urine and semen |
| Unreported | Quebec paramedics fear getting Ebola from patients | Refusal Valid | Employer didn’t have ample infection control measures in place |
| Unreported | Ontario paramedics fear getting Ebola from patients | Refusal Invalid | Risk of paramedics actually being exposed only hypothetical |
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