Scorecard: Work Refusals for Fear of Getting an Infectious Illness
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.
table { border-collapse: collapse; } td { padding: 8px; border-bottom: 1px solid #b4b3b3; } tr:hover {background-color: #e6ecf3;}| 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 |