Tuesday, March 31, 2020

Work refusals and COVID-19

A question COVID-19 raises is when can a worker successfully refuse work as unsafe due to the virus? The short answer (at least in Alberta) is likely to be only when the work is unusually and egregiously dangerous. Or when the consequences for the employer of denying the refusal would be profound.

In Alberta, you can always refuse unsafe work if you have reasonable grounds to believe that the work is unsafe. During a refusal, a worker must paid and the worker can be directed to perform alternative work. A worker cannot be retaliated against for a refusal (or, at least, such retaliation would be illegal…).

A refusal requires the employer to investigate and either (1) control the hazard or (2) tell you the work is safe. If the worker continues to have reasonable grounds to believe the work is unsafe, the worker may file a complaint with OHS and an officer will investigate. The investigation can result in compliance orders (to make the work safe) or a determination that the work is not hazardous.

The real question is in which circumstances can a worker successfully refuse unsafe work? That is to say, in what circumstances can a reluctant employer be forced to make work safe(r)?

(For the purposes of this post, I’m going to set aside cases where workers are providing medical services. These workers have working conditions and professional obligations that muddy the analysis. This article speaks a bit about the challenges for medical workers.)

For example, consider this case in Calgary, where a COVID-positive individual showed up to file legal documents, and thereby exposed the court clerks and security personal. Could the rest of the clerks (who are still on the job) refuse to work the public counter because of the risk of exposure?

A more every-day example might be grocery store cashiers, who must interact with anyone who comes in (undoubtedly included presently asymptomatic carriers of COVID-19) in close quarters. Could they refuse to check out groceries because the work is unsafe?

Alberta’s publications about work refusals assert various versions of “Health and safety hazards that are not normal for the job, or normal hazards that are not properly controlled, are considered a dangerous conditions (sic) that could trigger a work refusal.” (p.5).

I was unable to find a legislative anchor for this “normal for the job” assertion. I expect the thinking is that hazards that are normal for the job should already be controlled to the degree reasonably practicable. And the government wouldn’t want, for example, firefighters to refuse to fight fires (assuming whatever controls are reasonably practicable are in place). So it is only unusual hazards or normal hazards that someone aren’t controlled (e.g., due to changing circumstances) that can give rise to legitimate work refusals.

Assuming this “normal for the job” rule is in play, could grocery cashiers successfully refuse unsafe work on the basis that working in a pandemic is unsafe? An employer might well argue that exposure to infectious disease is a normal hazard of the job. Yet, workers might argue that a highly virulent pandemic that can result in potentially devastating health effects is either not a normal hazard of their job or is a normal hazard that is not adequately controlled.

There have been a number of COVID-related work refusals in Canada. An early one was March 14 among casino workers in Ontario. The workers noted that workers were exposed to COVID-19 during work despite the employer’s cleaning protocols, that casino chips were never cleaned, and the employer was not following its own cleaning protocols (e.g., too few staff cleaning, the cleaning was being done with the wrong chemicals, no hot water for hand washing). The Ministry of Labour did a seemingly superficial investigation and found the work was safe.

The case law on refusals during outbreaks of infectious diseases appears to find work with an inherent risk of exposure (transportation in the link above) and where the employer takes reasonable steps to comply with public-health advice will be deemed safe. Obviously context matters: workers at greater risk of ill-health may face a lower bar in establishing the work is unsafe.

So coming back to the grocery cashier example, an employer might successfully argue that regular cleaning of the cashier’s workspace, the provision of PPE (e.g., gloves), and administrative rules (e.g., don’t touch your face, wash your hands) constitutes reasonably practicable controls. Thus workers might not be able to require the employer to take further steps (e.g., provide masks or barriers).

This analysis of how the right to refuse plays out reflects a couple of underlying dynamics:
  1. Workers and employers often want different levels of safety. Employers typically want the least expensive form of safety necessary to keep their business operating. Workers might prefer a more costly (and likely more effective) set of hazard controls. This conflict is rooted in a basic struggle to capture the surplus value of labour. And employers are often able to use their greater labour market and legal power to limit injury-prevention efforts to only those instances when injury prevention is cost-effective.
  2. OHS is about maintaining production and safe workplaces is a bi-product, although not a necessary one. The point of OHS laws is to prevent class conflict over the injury and death of workers from disrupting production and imperiling social stability. It does this in a couple of ways. OHS laws channel conflict into manageable processes (e.g., a work refusal versus a wildcat strike) that also frame the government as a neutral actor. But the government can (and usually does) write and interpret the law in ways the minimally impact production (e.g., setting a low bar around what is considered safe). OHS rules also make workplaces somewhat safer, but not necessarily very safe.
So given the likely limited utility of the right to refuse in the face of COVID-19, what could the grocery workers do to make their workplaces safer. Here are some strategies:
  • Social pressure: Employers are (sometimes) subject to social pressure. A group of workers asking for reasonable safety precautions may be able to get what they want because an employer may feel badly about refusing their demands. This is especially the case when the target of this pressure is within the workers’ social circle (e.g., a supervisor or the owner of a small business). In this case, the demand might be a re-organization of work processes or the provision of additional protective equipment. For example, an independent grocery store in Edmonton has (voluntarily, I should add) hung clear plastic between cashiers and customers at the checkout to create a barrier.
  • Public pressure: Shit-talking your employer on social media is cause for termination in most workplaces. But it can also be an effective pressure tactic, especially if your employer is acting in an egregiously unsafe manner during a pandemic. The internet provides a variety of tools that can allow workers to try and mask their identities.
  • Insubordination: No one can force a worker to perform work, they can only attach sanctions for not doing the work. A work refusal (e.g., not coming in, not performing a particular piece of work, performing work in non-sanctioned ways) outside of the OHS Act is insubordination and may attract discipline (e.g., termination). But, if everyone does it, it can be a powerful tool for pushing employers take more action than they might otherwise be prepared to do. The risk, of course, is getting fired. The more people who cooperate with the insubordination, the harder it is for the employer to discipline.
  • Quit: While quitting in a terrible job market is not a viable option for everyone, it is always an option. And, as financial support for the unemployed is loosened during the pandemic, it becomes a somewhat more accessible option (which tells you a lot about why EI eligibility rules have been tightened over time). The article linked above about home care nurses being asked to perform their jobs without adequate protections is evidence that workers will sometimes choose their health and safety (or that of their loved ones) over a paycheque.
It will be interesting to see how the many refusals over COVID-19 going on right now play out over time. An interesting case is a number of nurses in Alberta who refused to perform COVID-19 swab tests without N95 masks.

Alberta Health Services (AHS) maintained N95 masks are not required for swab tests. The nurses argued that the method of transmission is not clear so the precautionary principle suggests use is warranted. Eventually, an agreement was reached that staff could have access to the masks.

AHS could have likely held firm and even chosen to discipline these nurses if they continue to refuse (assuming the OHS investigation concluded the masks were not required). But context matters and the politics of discipline are bad.

Nurses are a very sympathetic group of workers who are placing themselves in harm’s way during a pandemic. And all they were asking for were slightly more effective masks. And, if AHS choose to discipline them, AHS ran the risk of escalating job action (i.e, a wildcat strike) in healthcare .

Precipitating a wildcat strike (by disciplining the nurses) at the moment workers’ labour power is the greatest (during a pandemic and when the public is scared) would have been a bad outcome. So the employer accommodated the nurses' demands for greater safety.

-- Bob Barnetson

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