In these uncertain times, only employers providing so-called “essential services” are allowed to operate. Identifying and implementing safe work practices to protect employees’ health and safety are now key to keeping these operations running. This requirement is highlighted by the fact that, since the outset of the pandemic, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) has massively rejected the right of refusal invoked by many workers.1
The key to success for employers
When in doubt, public health authorities will not hesitate to close workplaces. A business can avoid such directives through strict hygiene measures that are consistently applied. The key to success for businesses will be to entrench, within in their prevention programs, the specific rules issued by the public health department on such subjects as hand washing, site cleaning and disinfection, where required.
It is not enough to reproduce the public health department’s guidelines on a bulletin board or within the prevention program; concrete measures must be identified, developed and implemented.
For example, some companies have staggered breaks, meal times and shift start times so that employees can arrive in small groups and easily maintain a minimum distance of 2 metres. The elimination of cafeteria seats is another example, as is administering a health questionnaire as employees arrive for work.
Although a number of workers have invoked the right of refusal since the start of the pandemic, the CNESST has rejected most, if not all, of them. It seems that fear of the coronavirus is not enough: there must be a real and specific danger in order for the right of refusal to be granted. The OHS measures put in place by employers have been crucial in this regard and have born fruit insofar as no right of refusal has been confirmed by the CNESST.
Right of refusal
The Act respecting occupational health and safety (CQLR, c. S-2.1) stipulates that a worker has a right to refuse to perform particular work if he has reasonable grounds to believe that the performance of that work would expose him to danger to his health, safety or physical well-being, or would expose another person to a similar danger.2
When a worker exercises the right of refusal, this triggers an internal analysis procedure by the employer. After discussion with the worker, if disagreement persists, the parties must apply to an inspector from the CNESST, who will make a decision. As part of that decision, the inspector may either grant the right of refusal or order the employee to return to work. The inspector may also prescribe temporary measures or corrections.3
In all cases, the inspector must render a written decision, including his or her reasons; the decision may later be challenged.
For advice on best practices to ensure a safe workplace for your employees, we invite you to get in touch with Langlois Lawyers.
2 Section 12 of the Act
3 Section 19 of the Act