By Jamie Jurczak, Taylor McCaffrey LLP
As the cold weather arrives, so does the flu. The flu poses many challenges for employers, most significantly in regard to worker absences. There’s little doubt that an employer might be motivated by a business interest to encourage workers who are sick with the flu to stay home and rest so they can nip the symptoms in the bud, return to work sooner and avoid passing the flu on to co-workers and causing even more absences. But we all know that many workers will come to work with flu-like symptoms and tough it out for a day or two, feeling they’re still well enough to work (a phenomenon called “presenteeism”). Also, many workplaces involve working with clients or customers, who may come in to your workplace with flu-like symptoms.
How should an employer manage a healthy worker who, upon spotting a sneezing and coughing co-worker or customer, packs up and refuses to work on the basis that his or her health is at risk because he or she might catch the flu from these sick individuals? Does a worker have a right under the OHS laws to refuse work in those circumstances?
In this article, we’ll look at some of the work refusal laws and how they might apply to situations where workers might try to exercise their right to refuse work in a non-healthcare setting due to fears of getting the flu.
Some Context from Health Canada
Health Canada states that the flu is a ”common respiratory illness that affects millions of Canadians every year.” The agency states that the most effective way to minimize the risk of getting the flu is by getting vaccinated. Beyond immunization, Health Canada’s recommendations that relate to controlling the spread of the flu are aimed at those who are actually sick, rather than those who are healthy. For example, it suggests certain coughing, sanitizing and hand-washing techniques. Significantly, Health Canada does recommend that people stay home if they are sick. But it’s important to note that it doesn’t specifically encourage people who are healthy to stay at home or avoid work to minimize the risk of getting the flu.
Here are some other flu facts from Health Canada that are important when considering work refusals:
- The influenza virus spreads through droplets from someone with the flu, who coughs or sneezes into the air;
- You can become infected if you shake hands with infected persons or touch contaminated surfaces, which can transfer the virus to your own eyes, nose or mouth;
- People can spread influenza up to 24 hours before symptoms appear and up to seven days after they do; and
- Not everyone who gets the flu develops symptoms, but they may still be able to spread it to others.
Thus, during the flu season, workers who refuse to attend the workplace because they see someone with symptoms at work still risk catching the flu, whether from a co-worker who isn’t showing symptoms yet or from someone outside of the office, such as at the mall or bank, or on the bus, for example.
Application of the Right to Refuse
Work refusal laws differ from jurisdiction to jurisdiction and how a work refusal in the context of the flu might be considered will differ from place to place, too. Generally speaking, work refusals require a danger to exist that poses a threat to a worker’s safety or health in the workplace. Further, an aspect of “reasonableness” often forms part of the assessment as to whether a work refusal is valid. That is, the worker’s refusal must typically be based on “reasonable cause” or “reasonable grounds.” In addition, work refusal laws often speak to whether the risk is “normal” in the course of the work. See this chart for general work refusal laws in each jurisdiction.
A potential hurdle for a worker who argues that working with a sick co-worker or sick customers constitutes a “danger” is the reality that, even if a danger exists, the risk of catching the flu isn’t exclusive to the workplace. It may be something that becomes “normal,” making the refusal “unreasonable.” Let’s look at two examples from different jurisdictions to see how work refusal laws might apply when it comes to the flu:
Alberta. In Alberta, Sec. 35(1)(a) of the OHS Act states that no worker shall carry out any work if, on reasonable and probable grounds, the worker believes that there exists imminent danger to the health and safety of that worker. For a co-worker with a flu to be considered an “imminent danger,” evidence is required to establish either that the danger isn’t normal for that occupation or the danger isn’t one under which the person in that occupation wouldn’t normally carry out his or her work [Sec. 35(2)].
Alberta published a series of answers to various hypothetical questions relating to the flu during a pandemic, i.e. when a new strain of flu affects a large number of people. The publication stated that a co-worker with the flu during a pandemic public health emergency would not be considered an imminent danger. First, the hazard presented isn’t considered dangerous and wouldn’t likely cause an injury or put a worker’s life at risk because, even though there’s a risk of catching the flu, a healthy worker isn’t guaranteed to become sick.
Second, in a pandemic, the risk of catching the flu becomes “normal” and therefore can’t fall within the definition of imminent danger. Although the Alberta publication speaks to the flu in pandemics, given Health Canada’s characterization of the flu as a “common” illness that affects many Canadians each year, it’s likely that the risk of catching the flu during the regular flu season (i.e. not a pandemic) would be viewed as “normal” in the workplace.
Manitoba. Not all jurisdictions have an imminent danger threshold to meet before a worker can refuse work. For example, in Manitoba, under Sec. 43 of the Workplace Safety and Health Act, a worker has a right to refuse work where he or she believes on reasonable grounds that the work constitutes a danger to his or her safety or health.
Manitoba also published an information bulletin relating to the flu during the H1N1 pandemic that attempted to provide some guidance to employers on precautions to protect workers, but also to address the issue of work refusals.
Unlike Alberta, whether workers could exercise their right to refuse due to the flu in Manitoba is a little less clear. The bulletin says that employees who work directly with members of the public aren’t generally considered to be at any higher risk of being infected with the flu, suggesting that it may not be reasonable for a worker to exercise his or her right to refuse. But the bulletin goes on to address the right to refuse, simply stating, ”Workplace Safety and Health legislation gives all workers the right to refuse hazardous work and have an issue investigated by the employer. Workers concerned about contracting the disease at work should: Ask their employer for information on the policies in place at their workplace; and Access the information on H1N1 from the Manitoba Health and Safe Manitoba websites.”
Although the bulletin still left open the possibility of a work refusal based on the flu, it’s worth noting that the focus appeared to be on ensuring employers had appropriate policies in place to help their workers avoid getting the flu while at work. The bulletin sets out a number of things employers would be expected to do to protect their workers, including developing and implementing policies and procedures to reduce the spread of the virus that are consistent with guidelines outlined by public health, including hand washing, proper cough etiquette and staying at home if sick. So it may be difficult to exercise a work refusal based on the flu as long as there are measures in place by the employer to help protect workers from catching the virus while on the job. Further, as the bulletin speaks to only pandemic H1N1 flu—and not the common flu—it’s likely that the risk of seasonal flu would be viewed as normal in the workplace and therefore, it would be unreasonable for a person to exercise a work refusal on that basis. Again, the fact that the Manitoba OHS laws require the refusal to be based on “reasonable grounds” would likely be the important factor here.
Each and every work refusal has to be considered individually and in consideration of the laws in each jurisdiction. Health Canada estimates that 4,000 to 8,000 Canadians, most of whom are seniors, die every year from flu-related pneumonia. Clearly, there are circumstances in which the flu might pose a risk to a worker’s life, making a work refusal on those grounds reasonable. However, it appears safe to argue that, in most circumstances, a work refusal on the basis of a co-worker, customer or client suffering from the seasonal flu wouldn’t be upheld under the OHS laws.
Jamie Jurczak is a partner at Taylor McCaffrey LLP. Jamie’s preferred area of practice is occupational health and safety. She’s experienced in defending employers charged under provincial and federal OHS legislation and is well versed in assisting clients in responding to serious workplace incidents, addressing administrative appeals of regulatory orders and performing regulatory compliance reviews and audits. She frequently speaks at conferences and seminars on various topics relating to OHS legal liability and due diligence. You can contact her at 204.988.0393 or email@example.com.
OHS Insider Resources
Go to the OHS Insider’s Pandemic and Flu Planning Compliance Centre for more information of protecting workers from getting sick and other flu-related issues.